Common use of Defense by Merck Clause in Contracts

Defense by Merck. Notwithstanding Section 1.3(b), Merck, in its sole discretion, upon written notice to Medco, may elect to defend (or may at any time assume the defense of) and, subject to Section 1.3(f), may settle or compromise, any Third Party Claim or series of related Third Party Claims, regardless of whether Merck is obligated to indemnify any member of the Medco Group in respect of such Third Party Claim or series of related Third Party Claims or whether Merck acknowledges any obligation to indemnify any Medco Indemnitee if: (i) any member of the Merck Group is named as a party to any of such Third Party Claims; or (ii) both Merck and Medco may be Indemnifying Parties with respect to such Third Party Claim(s). Except as otherwise provided in the definition of "Merck Share of the Shared Liability Actions," if Merck elects to defend against a Third Party Claim pursuant to this Section 1.3(c) all costs and expenses incurred by members of the Merck Group in connection with such defense shall be paid by Merck and Medco pro rata based on their respective proportionate liability for any Liabilities relating to, arising out of or resulting from such Third Party Claim (after taking into account the parties' respective indemnification obligations under this Agreement, other than with respect to payment of defense costs).

Defense by Merck. Notwithstanding Section 1.3(b), Merck, in its sole discretion, upon written notice to Medco, may elect to defend (or may at any time assume the defense of) and, subject to Section 1.3(f), may settle or compromise, any Third Party Claim or series of related Third Party Claims, regardless of whether Merck is obligated to indemnify any member of the Medco Group in respect of such Third Party Claim or series of related Third Party Claims or whether Merck acknowledges any obligation to indemnify any Medco Indemnitee if: (i) any member of the Merck Group is named as a party to any of such Third Party Claims; or (ii) both Merck and Medco may be Indemnifying Parties with respect to such Third Party Claim(s). Except as otherwise provided in the definition of "Merck Share of the Shared Liability Actions," if Merck elects to defend against a Third Party Claim pursuant to this Section 1.3(c) all costs and expenses incurred by members of the Merck Group in connection with such defense shall be paid by Merck and Medco pro rata based on their respective proportionate liability for any Liabilities relating to, arising out of or resulting from such Third Party Claim (after taking into account the parties' respective indemnification obligations under this Agreement, other than with respect to payment of defense costs).