Common use of Defense of Claims by Third Parties Clause in Contracts

Defense of Claims by Third Parties. Whenever a claim shall arise for indemnification under this Section 13 (except in respect of Taxes which shall be governed by the provisions of Section 8(g)), the party entitled to indemnification (the "Indemnified Party") shall promptly notify the party from whom indemnification is sought (the "Indemnifying Party") of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party no later than ten (10) days prior to the time any response to the asserted claim is required, if possible. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof. If an Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be entitled to select counsel and take all steps necessary in the defense thereof; provided, however, that, no settlement shall be made without the prior written consent of the Indemnified Party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided further, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume the defense of any such claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including , but not limited to, settling such claim or litigation (after giving notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13.

Defense of Claims by Third Parties. Whenever If there is asserted any claim, liability or obligation that in the judgment of a claim shall arise for indemnification under this Section 13 (except in respect of Taxes which shall be governed by the provisions of Section 8(g)), the party entitled to indemnification or person indemnified above (the "“Indemnified Party"”) may give rise to any Indemnified Losses, or if the Indemnified Party determines the existence of the foregoing, whether or not the same shall promptly notify have been asserted, such Indemnified Party shall give the party from whom indemnification indemnity is sought (the "Indemnifying Party"“Indemnitor”) notice within thirty (30) business days of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event assertion of any claim for indemnification hereunder resulting from claim, liability or in connection with any claim obligation, or legal proceedings by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party no later than within ten (10) business days prior to of receipt of notice of the time any response to the asserted claim is required, if possible. In the event filing of any lawsuit based upon such claim for indemnification resulting from or in connection assertion, or, with respect to a claim or legal proceeding by a third not yet asserted against the Indemnified party, promptly upon the Indemnifying Party may, at its sole cost and expense, assume the defense thereof. If determination by an Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be entitled to select counsel and take all steps necessary in the defense thereof; provided, however, that, no settlement shall be made without the prior written consent executive officer of the Indemnified Party (except that if of the existence of the same, and shall give the Indemnitor a reasonable opportunity of assuming the defense of such claim, liability or obligation, using counsel reasonably acceptable to the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement)party; and provided furtherprovided, however, that the Indemnified Party may, at its own expense, shall have the right to participate in any such proceeding with defense, except that if the counsel Indemnified Party retains separate counsel, other than in the event of its choice. So long as a conflict of interest requiring the Indemnifying Party is in good faith defending such claim or proceedingretention of separate counsel, the Indemnified Party shall assume the expense of the separate counsel. Failure by the Indemnified Party to give timely notice pursuant to this Section 11.4 shall not compromise relieve the Indemnitor of its obligations, except to the extent that the Indemnitor is actually prejudiced by such failure to give timely notice. No settlement or settle such claim adjustment shall be made without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld. If the Indemnitor fails to contest in good faith any such claim, liability or obligation, the Indemnified party shall have the right to defend, settle or pay the same and pursue its remedies against the Indemnitor hereunder without the participation or consent of the Indemnifying PartyIndemnitor. If The Indemnified Party shall cooperate with the Indemnifying Party does not assume the defense of Indemnitor in any such claim or litigation defense which the Indemnitor elects to assume in accordance with the terms hereof, event the Indemnitor makes such request to the Indemnified Party may defend against and such claim or litigation in such manner as it may deem appropriaterequest is reasonable, including , but not limited to, settling such claim or litigation (after giving notice of provided the same to the Indemnifying Party) on such terms as Indemnitor shall hold the Indemnified Party harmless from all of its out-of-pocket expenses, including attorneys’ fees, incurred in connection with the Indemnified Party’s cooperation. In the event of a disagreement among the parties as to whether any claim, liability or obligation may deem appropriategive ASSET PURCHASE AGREEMENT – PAGE 13 rise to an Indemnified Loss, and the Indemnifying Party will promptly indemnify then the Indemnified Party in accordance with shall have the provisions of this Section 13right to defend, settle or pay the same, or to pursue its remedies against Indemnitor hereunder.

Defense of Claims by Third Parties. Whenever If there is asserted any claim, liability or obligation that in the judgment of a claim shall arise for indemnification under this Section 13 (except in respect of Taxes which shall be governed by the provisions of Section 8(g)), the party entitled to indemnification or person indemnified above (the "“Indemnified Party"”) may give rise to any Indemnified Losses, or if the Indemnified Party determines the existence of the foregoing, whether or not the same shall promptly notify have been asserted, such Indemnified Party shall give the party from whom indemnification indemnity is sought (the "Indemnifying Party"“Indemnitor”) notice within thirty (30) business days of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event assertion of any claim for indemnification hereunder resulting from claim, liability or in connection with any claim obligation, or legal proceedings by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party no later than within ten (10) business days prior to of receipt of notice of the time any response to the asserted claim is required, if possible. In the event filing of any lawsuit based upon such claim for indemnification resulting from or in connection assertion, or, with respect to a claim or legal proceeding by a third not yet asserted against the Indemnified party, promptly upon the Indemnifying determination by an executive officer of ASSET PURCHASE AGREEMENT – PAGE 12 the Indemnified Party mayof the existence of the same, at its sole cost and expense, assume shall give the defense thereof. If an Indemnifying Party assumes Indemnitor a reasonable opportunity of assuming the defense of any such claim claim, liability or legal proceedingobligation, using counsel reasonably acceptable to the Indemnifying Party shall be entitled to select counsel and take all steps necessary in the defense thereofIndemnified party; provided, however, that, no settlement shall be made without the prior written consent of the Indemnified Party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided further, however, that the Indemnified Party may, at its own expense, shall have the right to participate in any such proceeding with defense, except that if the counsel Indemnified Party retains separate counsel, other than in the event of its choice. So long as a conflict of interest requiring the Indemnifying Party is in good faith defending such claim or proceedingretention of separate counsel, the Indemnified Party shall assume the expense of the separate counsel. Failure by the Indemnified Party to give timely notice pursuant to this Section 11.4 shall not compromise relieve the Indemnitor of its obligations, except to the extent that the Indemnitor is actually prejudiced by such failure to give timely notice. No settlement or settle such claim adjustment shall be made without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld. If the Indemnitor fails to contest in good faith any such claim, liability or obligation, the Indemnified party shall have the right to defend, settle or pay the same and pursue its remedies against the Indemnitor hereunder without the participation or consent of the Indemnifying PartyIndemnitor. If The Indemnified Party shall cooperate with the Indemnifying Party does not assume the defense of Indemnitor in any such claim or litigation defense which the Indemnitor elects to assume in accordance with the terms hereof, event the Indemnitor makes such request to the Indemnified Party may defend against and such claim or litigation in such manner as it may deem appropriaterequest is reasonable, including , but not limited to, settling such claim or litigation (after giving notice of provided the same to the Indemnifying Party) on such terms as Indemnitor shall hold the Indemnified Party harmless from all of its out-of-pocket expenses, including attorneys’ fees, incurred in connection with the Indemnified Party’s cooperation. In the event of a disagreement among the parties as to whether any claim, liability or obligation may deem appropriategive rise to an Indemnified Loss, and the Indemnifying Party will promptly indemnify then the Indemnified Party in accordance with shall have the provisions of this Section 13right to defend, settle or pay the same, or to pursue its remedies against Indemnitor hereunder.

Defense of Claims by Third Parties. Whenever a claim If any Purchaser Indemnitee shall arise for indemnification receive notice of any third party claim, suit, arbitration or other legal proceeding giving rise to indemnity under this Section 13 Agreement (except in respect of Taxes which shall be governed by the provisions of Section 8(g)a “Third Party Claim”), the party entitled to indemnification (Purchaser Indemnitee shall give the "Indemnified Party") shall promptly notify Indemnitor prompt written notice of the party from whom indemnification is sought (the "Indemnifying Party") of such claim and, when known, the facts constituting the basis for such claimsame; provided, however, that in failure to provide such written notice shall not release the event Indemnitor from any of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings its obligations under this Article 7, except to the extent (and only to the extent) the Indemnitor is materially prejudiced by such failure. If such Third Party Claim seeks only recovery of a third partysum of money, the Indemnified Party Indemnitor may, but shall give such not be obligated to, upon prompt written notice thereof furnished to the Indemnifying Party no later than ten (10) days prior to the time any response to the asserted claim is required, if possible. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party may, at its sole cost and expensePurchaser Indemnitee, assume the defense thereof. If an Indemnifying Party assumes the defense of any such claim claim, suit, arbitration or legal other proceeding, with counsel reasonably satisfactory to the Indemnifying Party Purchaser Indemnitee, if the Indemnitor acknowledges to the Purchaser Indemnitee in writing its obligations to indemnify the Purchaser Indemnitee with respect to all elements of such claim. If the Indemnitor furnishes such written acknowledgment, the Indemnitor will be entitled to assume and control the defense of such claim, suit, arbitration or other or proceeding, and the Purchaser Indemnitee shall be entitled to select participate in (but not control) the defense of any such action, with its own counsel and take all steps necessary in at its own expense. The notice to the defense thereof; providedIndemnitor shall specify, howeverif known, that, no settlement the amount or an estimate of the amount of the liability arising therefrom. Neither the Indemnitor nor the Purchaser Indemnitee shall be made settle or compromise any claim by a third party without the prior written consent of the Indemnified Party other party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided further, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party which shall not compromise or settle such claim without the prior written consent of the Indemnifying Partybe unreasonably withheld). If the Indemnifying Party Indemnitor does not assume the defense of any such claim claim, suit, arbitration or litigation in accordance with other proceeding as provided above, (a) the terms hereof, the Indemnified Party Purchaser Indemnitee may defend against such claim or litigation the same, in such manner as it may deem appropriateappropriate and at the Indemnitor’s cost and expense, including including, but not limited towithout limitation, settling such claim or litigation (after giving notice of the same matter; provided that such settlement shall be subject to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriateIndemnitor’s prior written consent (which shall not be unreasonably withheld), and (b) the Indemnifying Indemnitor shall be entitled to participate in (but not control) the defense of such action, with its own counsel and at its own expense. Notwithstanding the foregoing, if a Purchaser Indemnitee determines in good faith that there is a reasonable probability that a Third-Party Claim may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Purchaser Indemnitee may, by notice to the Indemnitor, assume the exclusive right to defend, compromise, or settle such Third-Party Claim, but the Indemnitor will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13not be bound by any compromise or settlement effected without its consent (which may not be unreasonably withheld).

Defense of Claims by Third Parties. Whenever An indemnified party shall give the indemnifying party notice of any matter which an indemnified party has determined has given or could give rise to a claim shall arise for right of indemnification under this Section 13 Agreement, promptly after such determination. The obligations of the indemnifying party under this section 4 with respect to Losses arising from claims of any third party that are subject to the indemnification provided for in this section 4 (except in respect of Taxes which "Third Party Claims") shall be governed by and contingent upon the provisions following additional terms and conditions: If any indemnified party shall receive notice of Section 8(g))any Third Party Claim, the indemnified party entitled to indemnification (shall give the "Indemnified Party") shall promptly notify the indemnifying party from whom indemnification is sought (the "Indemnifying Party") notice of such claim and, when known, Third Party Claim promptly after the facts constituting receipt by the basis for indemnified party of such claimnotice; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, the Indemnified Party shall give failure to provide such notice thereof shall not release the indemnifying party from any of its obligations under this section 4, except to the Indemnifying Party no later extent the indemnifying party is prejudiced by such failure, and shall not relieve the indemnifying party from any other obligation or liability that it may have to an indemnified party otherwise than ten (10) days prior to the time any response to the asserted claim is required, if possible. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereofunder this section 4. If an Indemnifying the indemnifying party acknowledges in writing its obligation to indemnify the indemnified party hereunder against any Losses that may result from such Third Party assumes Claims, then the defense of any such claim or legal proceeding, the Indemnifying Party indemnifying party shall be entitled to select counsel assume and take all steps necessary in control the defense thereofof such Third Party Claim at its expense and through counsel of its choice, if the indemnifying party gives prompt notice of its intention to do so to the indemnified party and provides reasonable assurance to the indemnified party of its financial ability to fulfill its indemnification obligations hereunder; provided, however, thatthat if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the indemnified party for the same counsel to represent both the indemnified party and the indemnifying party, no settlement then the indemnified party shall be made without entitled to retain its own counsel, in each jurisdiction for which the prior written consent indemnified party determines counsel is required, at the expense of the Indemnified Party indemnifying party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided furtherit being understood, however, that the Indemnified indemnifying party shall continue nonetheless to control the defense of the Third Party mayClaim). In the event the indemnifying party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the indemnified party shall cooperate with the indemnifying party in such defense and shall cooperate with the indemnifying party in such defense and make available to the indemnifying party, at its own the indemnifying party's expense, participate all witnesses, pertinent records, materials and information in the indemnified party's possession or under the indemnified party's control relating thereto as is reasonably required by the indemnifying party. Similarly, in the event the indemnified party is, directly or indirectly, conducting the defense against any such proceeding Third Party Claim, the indemnifying party shall cooperate with the counsel of its choiceindemnified party in such defense and make available to the indemnified party, at the indemnifying party's expense, all such witnesses, records, materials and information in the indemnifying party's possession or under the indemnifying party's control relating thereto as is reasonably required by the indemnified party. So long as No such Third Party Claim may be settled by the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim indemnified party without the prior written consent of the Indemnifying Partyindemnifying party. If the Indemnifying Party does not assume the defense of any such claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including , but not limited to, settling such claim or litigation (after giving notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13.5. Miscellaneous 5.1