Defence of Claims. a) Each party (indemnifying party) will defend and settle, and indemnify and hold harmless the other party from and against any liability for legal costs or damages awarded under any final judgment or amounts payable by the other party under a settlement Agreement made in respect of, any action, claim or proceeding brought by a third party against the other party alleging that the other party's use of the indemnifying party's Material infringes Intellectual Property Rights of any person (an IP Claim). b) Where a party is subject to an IP Claim, it must: i. notify the indemnifying party in writing immediately of any such IP Claim; ii. give the indemnifying party sole control of the defence of the proceedings; iii. cooperates and provides reasonable assistance to the indemnifying party to defend or settle the IP Claim; iv. not settle the IP Claim or consent to any judgment being entered without the indemnifying party's prior written consent; and v. takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in Clause 6.10 a). c) The indemnifying party's obligation under Clause 6.10 a) is reduced to the extent that: i. the other party's failure to comply with Xxxxxxx 6.10 b) prejudices the indemnifying party's defence of the IP Claim; ii. the IP Claim is based on use of the indemnifying party's Material in a manner or for a purpose not authorised by the indemnifying party. d) If any IP Claim is made, or in Kineo's reasonable opinion is likely to be made, against the Customer, Kineo may at its option and expense: i. obtain for the Customer the right to continue using the relevant Kineo Material in the manner permitted under this Agreement; or ii. modify or replace the infringing part of the Kineo Material so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Kineo Material; or iii. terminate the Agreement and refund Charges paid in advance by the Customer in respect of any period following such termination. e) The provisions of this Clause 6.10 state the entire liability of the indemnifying party to the other party in connection with an IP Claim and shall be the other party’s sole and exclusive remedy in that regard.
Appears in 3 contracts
Samples: Terms and Conditions, Terms and Conditions, Terms and Conditions
Defence of Claims. (a) Each party (The indemnifying party) will defend Party, at its option and settleexpense and with counsel of its selection, shall be entitled to assume and control the defence of any claim, action, suit or proceeding within the ambit of Section 11.1, subject to the indemnified Party’s prior written approval; provided, however, it gives prompt notice to the indemnified Party of its intention so, to do, and indemnify reimburses the indemnified Party for reasonable costs and hold harmless the other party from and against any liability for legal costs or damages awarded under any final judgment or amounts payable expenses incurred by the other party under a settlement Agreement made in respect of, any action, claim or proceeding brought indemnified Party prior to assumption by a third party against the other party alleging that the other party's use of the indemnifying party's Material infringes Intellectual Property Rights Party of any person (an IP Claim)such defence.
(b) Where a party is subject to an IP Claim, it must:
i. notify Unless and until the indemnifying party Party acknowledges in writing immediately of any such IP Claim;
ii. give its obligation to indemnify the indemnifying party sole indemnified Party and assumes control of the defence of a claim, suit, action or proceeding in accordance with Section 11.4(a), the proceedings;indemnified Party shall have the right, but not the obligation, to contest, defend and litigate, with counsel of its own selection, any claim, action, suit or proceeding by any third party, alleged or asserted against such Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder and the reasonable costs and expense thereof shall be subject to the indemnification obligations of the indemnifying Party hereunder.
iii. cooperates (c) Upon assumption by the indemnifying Party of the control of the defence of a claim, suit, action or proceeding in accordance with this Section 11.4(a), the indemnifying Party shall reimburse the indemnified Party for reasonable costs and provides reasonable assistance expenses of the indemnified Party in the defence of the claim, suit, action or proceeding prior to the indemnifying party Party’s acknowledgment of the indemnification and assumption of the defence.
(d) Neither Party shall be entitled to defend settle or settle the IP Claim;
iv. not settle the IP Claim compromise any such claim, action, suit, or consent to any judgment being entered proceeding without the indemnifying party's other Party’s prior written consent; and
v. takes all reasonable steps provided, however, that after agreeing in writing to mitigate indemnify the indemnified Party as per Section 11.4(a) and Section 11.4(b), the indemnifying Party may settle or compromise any liabilities which are claim without the subject approval of the indemnity in Clause 6.10 a)indemnified Party.
c(e) The indemnifying party's obligation under Clause 6.10
a) is reduced to the extent that:
i. the other party's failure to comply with Xxxxxxx 6.10 b) prejudices the indemnifying party's defence Following acknowledgment of the IP Claim;
ii. the IP Claim is based on use indemnification and assumption of the indemnifying party's Material in a manner or for a purpose not authorised defence by the indemnifying party.
d) If any IP Claim is madeParty, or in Kineo's reasonable opinion is likely to be made, against the Customer, Kineo may at its option and expense:
i. obtain for the Customer indemnified Party shall have the right to continue using employ its own counsel, and such counsel may participate in such action, but the relevant Kineo Material fees and expenses of such counsel shall be at the expense of such indemnified Party, when and as incurred, unless(i) the employment of counsel by such indemnified Party has been authorized in writing by the indemnifying Party, (ii) the indemnified Party shall have reasonably concluded that there may be a conflict of interest between the indemnifying Party and the indemnified Party in the manner permitted under conduct of the defence of such action, (iii) the indemnifying Party shall not in fact have employed independent counsel reasonably satisfactory to the indemnified Party to assume the defence of such action and shall have been so notified by the indemnified Party, or (iv) the indemnified Party shall have reasonably concluded and specifically notified the indemnifying Party either that there may be specific defences available to it that are different from or additional to those available to the indemnifying Party or that such claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the scope of this Agreement; or
. In the event that clauses (ii. modify ), (iii) or replace the infringing part (iv) of the Kineo Material so as preceding sentence are applicable, then counsel for the indemnified Party shall have the right to avoid direct the infringement defence of such claim, action, suit or alleged infringement, but in such a way that does not materially adversely affect the functionality proceeding on behalf of the Kineo Material; or
iii. terminate indemnified Party and the Agreement reasonable fees of and refund Charges paid in advance disbursements to such counsel shall constitute legal or other expenses hereunder chargeable to and payable by the Customer in respect of any period following such terminationindemnifying Party.
e) The provisions of this Clause 6.10 state the entire liability of the indemnifying party to the other party in connection with an IP Claim and shall be the other party’s sole and exclusive remedy in that regard.
Appears in 2 contracts
Defence of Claims. (a) Each party (The indemnifying party) will defend Party shall be entitled, at its option and settlee xpense and with counsel of its selection, to assume and indemnify control the defence of such claim, action, suit or proceeding at its expense with counsel of its selection, subject to the prior approval of the indemnified Party; provided, however, it gives prompt notice of its intention to do so to the indemnified Party and hold harmless reimburses t he indemnified P arty f or the other party from and against any liability for legal costs or damages awarded under any final judgment or amounts payable reasonable co sts an d expenses incurred b y t he indemnified Party prior to the assumption by the other party under a settlement Agreement made in respect of, any action, claim or proceeding brought by a third party against the other party alleging that the other party's use indemnifying Party of such defence.
(b) Unless and until the indemnifying party's Material infringes Intellectual Property Rights of any person (an IP Claim).
b) Where a party is subject to an IP Claim, it must:
i. notify the indemnifying party Party acknowledges in writing immediately of any such IP Claim;
ii. give its obligation to indemnify the indemnifying party sole indemnified Party and assumes control of the defence of a claim, suit, action or proceeding in accordance with this Clause, the proceedings;indemnified Party shall have the right, but not t he obligation, to contest, defend and litigate, with counsel of its own selection, any claim, action, suit or proceeding by any t xxxx pa rty alleged or asserted against such Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder, an d t he reasonable costs an d ex pense t hereof shall b e s ubject t o the indemnification obligations of the indemnifying Party hereunder.
iii. cooperates (c) Upon assumption by the indemnifying Party of the control of the defence of a cl aim, suit, action or pr oceeding, the indemnifying Party shall reimburse the indemnified Party f or the reasonable costs and provides reasonable assistance expenses of the indemnified Party in the defence of the claim, suit, action or proceeding prior to the indemnifying party to defend Party’s acknowledgement of the indemnification and assumption of the defence.
(d) Neither Party shall be en titled t o s ettle or settle the IP Claim;
iv. not settle the IP Claim or consent to any judgment being entered co mpromise an y su ch c laim, action, suit o r proceeding without the indemnifying party's prior written consent; and
v. takes all reasonable steps to mitigate any liabilities which are the subject consent of the indemnity other Party, provided, however, that after agreeing in Clause 6.10 a)writing to indemnify the indemnified Party, the indemnifying Party may settle or compromise any claim without the approval of the indemnified Party.
c(e) The indemnifying party's obligation under Clause 6.10
a) is reduced to Following the extent that:
i. the other party's failure to comply with Xxxxxxx 6.10 b) prejudices the indemnifying party's defence acknowledgement of the IP Claim;
ii. indemnification and the IP Claim is based on use assumption of the indemnifying party's Material in a manner or for a purpose not authorised defence by the indemnifying party.
d) If any IP Claim is madeParty, or in Kineo's reasonable opinion is likely to be made, against the Customer, Kineo may at its option and expense:
i. obtain for the Customer indemnified Party shall have the right to continue using employ its own counsel and such counsel may participate in such action, but the relevant Kineo Material fees and expenses of such counsel shall b e a t t he e xpense of s uch indemnified P arty, when a nd a s incurred, u nless ( i) the employment of counsel by such indemnified P arty ha s b een a uthorised in writing b y t he indemnifying Party, (ii) the indemnified Party shall have reasonably concluded that there may be a conflict of interest be tween the indemnifying Party a nd the indemnified Party in the manner permitted under conduct o f t he d efence of s uch action, ( iii) the i ndemnifying Party s hall not i n f act have employed independent counsel reasonably satisfactory to the indemnified Party to assume the defence of such action and shall have been so notified by the indemnified Party, or (iv) the indemnified Party shall have reasonably concluded and specifically notified the indemnifying Party either that there may be specific defences available to it which are different from or additional to t hose available t o t he indemnifying Party or t hat s uch c laim, action, s uit or proceeding involves or could have a material adverse effect upon it beyond the scope of this Agreement; or
Contract. If (ii. modify ), (iii) or replace the infringing part (iv) of the Kineo Material so as to avoid preceding sentence shall be applicable, then counsel for the infringement indemnified P xxxx x xxxx ha ve t he right t o di rect the de fence of such claim, a ction, s uit or alleged infringement, but in such a way that does not materially adversely affect the functionality proceeding on behalf of the Kineo Material; or
iii. terminate indemnified Party and the Agreement reasonable fees and refund Charges paid in advance by the Customer in respect disbursements of any period following such terminationcounsel shall constitute legal or other expenses hereunder.
e) The provisions of this Clause 6.10 state the entire liability of the indemnifying party to the other party in connection with an IP Claim and shall be the other party’s sole and exclusive remedy in that regard.
Appears in 1 contract
Defence of Claims. a) Each party (indemnifying party) will defend and settle, and indemnify and hold harmless the other party from and against any liability for legal costs or damages awarded under any final judgment or amounts payable by the other party under a settlement Agreement made in respect of, any action, claim or proceeding brought by a third party against the other party alleging that the other party's use of the indemnifying party's Material infringes Intellectual Property Rights of any person (an IP Claim).
b) Where a party is subject to an IP Claim, it must:
i. notify the indemnifying party in writing immediately of any such IP Claim;
ii. give the indemnifying party sole control of the defence of the proceedings;
iii. cooperates and provides reasonable assistance to the indemnifying party to defend or settle the IP Claim;
iv. not settle the IP Claim or consent to any judgment being entered without the indemnifying party's prior written consent; and
v. takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in Clause 6.10 a).
c) The indemnifying party's obligation under Clause 6.10
a) is reduced to the extent that:
i. the other party's failure to comply with Xxxxxxx 6.10 b) prejudices the indemnifying party's defence of the IP Claim;
ii. the IP Claim is based on use of the indemnifying party's Material in a manner or for a purpose not authorised by the indemnifying party.
d) If any IP Claim is made, or in KineoXxxxx's reasonable opinion is likely to be made, against the Customer, Kineo may at its option and expense:
i. obtain for the Customer the right to continue using the relevant Kineo Material in the manner permitted under this Agreement; or
ii. modify or replace the infringing part of the Kineo Material so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Kineo Material; or
iii. terminate the Agreement and refund Charges paid in advance by the Customer in respect of any period following such termination.
e) The provisions of this Clause 6.10 state the entire liability of the indemnifying party to the other party in connection with an IP Claim and shall be the other party’s sole and exclusive remedy in that regard.
Appears in 1 contract
Samples: Terms and Conditions
Defence of Claims. a) Each party (indemnifying party) will defend and settle, and indemnify and hold harmless the other party from and against any liability for legal costs or damages awarded under any final judgment or amounts payable by the other party under a settlement Agreement agreement made in respect of, any action, claim or proceeding brought by a third party against the other party alleging that the other party's use of the indemnifying party's Material infringes Intellectual Property Rights of any person (an IP Claim).
b) Where a party is subject to an IP Claim, it must:
i. notify the indemnifying party in writing immediately of any such IP Claim;
ii. give the indemnifying party sole control of the defence of the proceedings;
iii. cooperates cooperate with and provides provide reasonable assistance to the indemnifying party to defend or settle the IP Claim;
iv. not settle the IP Claim or consent to any judgment being entered without the indemnifying party's prior written consent; and
v. takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in Clause 6.10 a6.7(a).
c) The indemnifying party's obligation under Clause 6.10
a6.7(a) is reduced to the extent that:
i. the other party's failure to comply with Xxxxxxx 6.10 bClauses 6.7(b) prejudices the indemnifying party's defence of the IP Claim;
ii. the IP Claim is based on use of the indemnifying party's Material in a manner or for a purpose not authorised by the indemnifying party.
d) If any IP Claim is made, or in KineoXxxxx's reasonable opinion is likely to be made, against the Customer, Kineo may at its option and expense:
i. obtain for the Customer the right to continue using the relevant Kineo Material in the manner permitted under this Agreement; or
ii. modify or replace the infringing part of the Kineo Material so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Kineo Material; or
iii. terminate the Agreement and refund Charges paid in advance by the Customer in respect of any period following such termination.
e) The provisions of this Clause 6.10 6.7 state the entire liability of the indemnifying party to the other party in connection with an IP Claim and shall be the other party’s sole and exclusive remedy in that regard.
Appears in 1 contract
Samples: Terms and Conditions
Defence of Claims. a) Each 12.1 Where, pursuant to the terms of this Agreement, a party (indemnifying partythe "Indemnifying Party") will defend and settle, and indemnify and hold harmless indemnifies the other party from and (the "Indemnified Party") against any liability for legal costs or damages awarded under any final judgment or amounts payable by the other party under a settlement Agreement made in respect of, any action, suit or proceeding being brought against the Indemnified Party, the following clauses 12.2 to 12.5 apply.
12.2 Within 10 Business Days of being notified or becoming aware of the institution of any action, suit or proceeding which may give rise to a claim under the relevant indemnity, the Indemnified Party must notify the Indemnifying Party of that fact and give to the Indemnifying Party (so far as it is able to do so) full details of such action, suit or proceeding. Sch. 1
12.3 The Indemnified Party must not agree to arbitrate any claim or pay, settle or compromise such action, suit or proceeding brought by a third party against without the other party alleging that the other party's use consent (not to be unreasonably withheld) of the indemnifying party's Material infringes Intellectual Property Rights Indemnifying Party within 20 Business Days of the giving of the notice referred to in clause 12.2 nor at any person (an IP Claim)time thereafter provided within that 20 Business Days, the Indemnifying Party has notified the Indemnified Party that it intends to defend the relevant action, suit or proceeding and has commenced such defence or has taken such steps as are reasonably open to it to do so.
b12.4 Any defence of an action, suit or proceeding by the Indemnifying Party pursuant to clause 12.3 will be conducted (if necessary) Where a party is subject to an IP Claim, it must:
i. notify in the indemnifying party in writing immediately of any such IP Claim;
ii. give the indemnifying party sole control name of the defence Indemnified Party but in accordance with the reasonable directions and at the expense of the proceedings;Indemnifying Party. The Indemnifying Party in defending an action, suit or proceeding will have regard to, and not unreasonably pursue a course of action which would jeopardise, any ongoing business relationships, reputation or manpower requirements of the Indemnified Party.
iii. cooperates and provides 12.5 The Indemnified Party will at the expense of the Indemnifying Party (which expense will include executive time at usual hourly rates) render or cause to be rendered to the Indemnifying Party such reasonable assistance to as the indemnifying party to defend or settle the IP Claim;
iv. not settle the IP Claim or consent to any judgment being entered without the indemnifying party's prior written consent; and
v. takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in Clause 6.10 a).
c) The indemnifying party's obligation under Clause 6.10
a) is reduced to the extent that:
i. the other party's failure to comply with Xxxxxxx 6.10 b) prejudices the indemnifying party's defence of the IP Claim;
ii. the IP Claim is based on use of the indemnifying party's Material in a manner or for a purpose not authorised by the indemnifying party.
d) If any IP Claim is made, or in Kineo's reasonable opinion is likely to be made, against the Customer, Kineo Indemnifying Party may at its option and expense:
i. obtain for the Customer the right to continue using the relevant Kineo Material in the manner permitted under this Agreement; or
ii. modify or replace the infringing part of the Kineo Material so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Kineo Material; or
iii. terminate the Agreement and refund Charges paid in advance by the Customer in respect of any period following such termination.
e) The provisions of this Clause 6.10 state the entire liability of the indemnifying party to the other party reasonably require in connection with an IP Claim such defence including, without limiting the generality of the foregoing, taking such action and shall be providing such witnesses and documentary or other evidence as the Indemnifying Party may reasonably request to avoid, dispute, resist, appeal, compromise or defend the action, suit or proceeding and affording the Indemnifying Party and his lawyers and other party’s sole representatives all reasonable access to all relevant books, records, files and exclusive remedy in that regarddocuments and to appropriate personnel of the Indemnified Party for the purposes of such defence.
Appears in 1 contract
Samples: Agreement for the Merger of State Bank of Victoria and Commonwealth Bank of Australia
Defence of Claims. a) Each party (indemnifying party) will defend and settle, and indemnify and hold harmless the other party from and against any liability for legal costs or damages awarded under any final judgment or amounts payable by the other party under a settlement Agreement agreement made in respect of, any action, claim or proceeding brought by a third party against the other party alleging that the other party's use of the indemnifying party's Material infringes the rights (including Intellectual Property Rights Rights) of any person (an IP Claim).
b) Where a party is subject to an IP Claim, it mustprovided that the other party:
i. notify notifies the indemnifying party in writing immediately of any such IP Claim;
ii. give gives the indemnifying party sole control of the defence of the proceedings;
iii. cooperates and provides reasonable assistance to the indemnifying party to defend or settle the IP Claim;; and
iv. does not settle the IP Claim or consent to any judgment being entered without the indemnifying party's prior written consent; and
v. takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in Clause 6.10 a).
cb) The indemnifying party's obligation under Clause 6.10
aclause 6.9(a) is reduced to the extent that:
i. the other party's failure to comply with Xxxxxxx 6.10 bclauses 6.9(a)(i) to 6.9(a)(iv) prejudices the indemnifying party's defence of the IP Claim;
ii. the IP Claim is based on use of the indemnifying party's Material in a manner or for a purpose not authorised by the indemnifying party.
da) If any IP Claim is madeIn performing this agreement, each party must comply with all Privacy Laws in respect of all Personal Information collected, used, disclosed and otherwise handled by them under or in Kineo's reasonable opinion is likely connection with this agreement.
b) The Client warrants to be made, against e3Learning that the Customer, Kineo may at its option Client has (and expensewill maintain during the Term) a privacy policy that complies with the Privacy Laws and permits:
i. obtain for the Customer the right Client to continue using the relevant Kineo Material in the manner permitted under this Agreementdisclose Personal Information to e3Learning; orand
ii. modify or replace the infringing part of the Kineo Material so as e3Learning to avoid the infringement or alleged infringementuse Personal Information,
c) Subject to clause 7(b), but in such a way e3Learning must handle all Personal Information that does not materially adversely affect the functionality of the Kineo Material; or
iii. terminate the Agreement and refund Charges paid in advance is disclosed to e3Learning by the Customer Client under this agreement consistent with the Compliant Privacy Policy (as notified in respect of any period following such terminationwriting by the Client to e3Learning from time to time) and all applicable Privacy Laws.
ed) The provisions of Without limiting paragraph (c) above, e3Learning must:
i. only use Personal Information disclosed to e3Learning by the Client under this Clause 6.10 state the entire liability of the indemnifying party agreement to the other party extent necessary to provide the Services in connection accordance with an IP Claim and shall be the other party’s sole and exclusive remedy in that regard.this Agreement;
Appears in 1 contract
Samples: Terms and Conditions
