Common use of Direct Claim Indemnification Procedures Clause in Contracts

Direct Claim Indemnification Procedures. The Notice of Loss shall be provided to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim). Notwithstanding anything to the contrary set forth in the first sentence of this Section 7.5, but subject to Section 7.1(c), any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim, which shall be governed by the provisions of Section 7.6), shall not relieve any Indemnifying Party from any obligations that it may have to the Indemnified Party under this Section 7.5 except to the extent that the Indemnifying Party is actually prejudiced by the Indemnified Party’s failure to give such Notice of Loss. The Indemnifying Party shall have forty-five days following the receipt of a Notice of Loss to respond in writing to such Notice of Loss. If the Indemnifying Party fails to respond to a Notice of Loss in writing within forty-five days following the receipt thereof, the Indemnifying Party shall be deemed to have rejected the claims made in such Notice of Loss. If the Indemnifying Party affirmatively elects not to dispute a claim described in a Notice of Loss, then the amount of such claim, as set forth in such Notice of Loss, shall be deemed to be an obligation or liability of such Indemnifying Party payable pursuant to Section 7.9. If the Indemnifying Party timely responds in writing disputing any claim in a Notice of Loss, the Indemnifying Party and the Indemnified Party, for forty-five days following the Indemnified Party’s receipt of the Indemnifying Party’s written response, shall use their commercially reasonable efforts to settle (without an obligation to settle) the claims for indemnification set forth in the applicable Notice of Loss. If the Indemnifying Party and the Indemnified Party have not reached a settlement within such forty-five days, subject to Section 8.9, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 7.

Direct Claim Indemnification Procedures. The Notice of Loss shall be provided (a) If an Indemnified Party wishes to the Indemnifying make a claim for indemnification under this Article VIII for Losses that do not result from a Third Party as soon as practicable after Claim (a “Direct Claim”), the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim). Notwithstanding anything to the contrary set forth in the first sentence of this Section 7.5, but subject to Section 7.1(c), any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim, which shall be governed by the provisions of Section 7.6), shall not relieve any notify each Indemnifying Party from any obligations that it may have to whom indemnification is sought (or the Indemnified Party under this Section 7.5 except to the extent that Stockholders’ Representative, where the Indemnifying Party is actually prejudiced a Stockholder Indemnifying Party and indemnification is not being sought directly from such Stockholder Indemnifying Party) in writing of such Direct Claim (a “Direct Claim Notice”), including a brief summary of the facts underlying or related to such claim to the extent then known by the Indemnified Party’s failure Party and a statement that the Indemnified Party seeks indemnification for Losses relating to give such Notice of Lossclaim. The Indemnifying Party (or the Stockholders’ Representative, where the Indemnifying Party is a Stockholder Indemnifying Party and indemnification is not being sought hereunder directly from such Stockholder Indemnifying Party) shall have forty-five a period of thirty (30) days following the receipt of a Notice of Loss within which to investigate and respond in writing to such Notice Direct Claim and the Indemnified Party shall reasonably cooperate with such investigation and response. (b) If the Indemnifying Party (or the Stockholders’ Representative, where the Indemnifying Party is a Stockholder Indemnifying Party and indemnification is not being sought directly from such Stockholder Indemnifying Party) accepts a Direct Claim or does not respond within such 30-day period, the Indemnifying Party will be deemed to have accepted the Direct Claim and to have conclusively acknowledged its obligation to indemnify the Indemnified Party with respect to all Losses imposed on, sustained, incurred or suffered by, or asserted against the Indemnified Party in respect of Losssuch Direct Claim. If the Indemnifying Party fails to respond to a Notice of Loss in writing within forty-five days following (or the receipt thereofStockholders’ Representative, where the Indemnifying Party shall be is a Stockholder Indemnifying Party and indemnification is not being sought hereunder directly from such Stockholder Indemnifying Party) accepts or is deemed to have rejected accept the claims Direct Claim within thirty (30) days after the date of such acceptance, it shall pay (or, where the Indemnifying Party is a Stockholder Indemnifying Party, the Stockholders’ Representative shall instruct the Escrow Agent to pay) the amount of Losses (if any) specified in the Direct Claim Notice for which the Indemnifying Party (or the Stockholders’ Representative, where the Indemnifying Party is a Stockholder Indemnifying Party and indemnification is not being sought directly from such Stockholder Indemnifying Party) has accepted indemnification at that time (which amount shall not be conclusive of the final amount of such Direct Claim). (c) A Claim Notice shall state the estimated amount of Losses (which estimate shall not be conclusive of the final amount of such claim) that the Indemnified Party believes it has sustained, incurred or suffered or reasonably anticipates to sustain, incur or suffer with respect to any Third Party Claim or Direct Claim and identify the representations and warranties contained in this Agreement that the Indemnified Party believes were breached or otherwise identify the basis upon which the Indemnified Party believes that it is entitled to indemnification (which basis shall not be conclusive of the final determination of liability for indemnification). (i) If the Indemnifying Party (or the Stockholders’ Representative, where the Indemnifying Party is a Stockholder Indemnifying Party and indemnification is not being sought directly from such Stockholder Indemnifying Party) in good faith objects to any claim made by the Indemnified Party, then the Indemnifying Party (or the Stockholders’ Representative, where the Indemnifying Party is a Stockholder Indemnifying Party and indemnification is not being sought directly from such Stockholder Indemnifying Party) shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt of the Direct Claim Notice. The Claim Dispute Notice shall set forth in such Notice reasonable detail the principal basis for the dispute of Lossany claim made by the Indemnified Party in the Direct Claim Notice. If the Indemnifying Party affirmatively elects (or the Stockholders’ Representative, where the Indemnifying Party is a Stockholder Indemnifying Party and indemnification is not to dispute being sought directly from such Stockholder Indemnifying Party) delivers a claim described in a Notice of LossClaim Dispute Notice, then the amount of parties shall attempt in good faith to resolve and settle any such claim, as set forth objections raised in such Notice Claim Dispute Notice. (ii) If the Indemnifying Party, or, where the Indemnifying Party is a Stockholder Indemnifying Party, the Stockholders’ Representative (or such objecting Stockholder Indemnifying Party) and the Indemnified Party so agree, a memorandum setting forth such agreement shall be prepared and signed and, in the case of Lossa claim against the Escrow Account, shall be deemed furnished to the Escrow Agent. (iii) If no such resolution can be an obligation or liability of such Indemnifying Party payable pursuant to Section 7.9. If the Indemnifying Party timely responds in writing disputing any claim in a Notice of Loss, the Indemnifying Party and the Indemnified Party, for forty-five reached within 30 days following after the Indemnified Party’s receipt of a given Claim Dispute Notice (or such longer period as the Indemnifying Party’s written responseparties may otherwise agree), then upon the expiration of such 30 day period (or such longer period as the parties may otherwise agree), the parties will resolve the dispute by mandatory, final and binding arbitration held in Santa Xxxxx County, California or at such other location as is mutually agreed to by the parties (to the extent not telephonic) and at a time that is reasonably acceptable to the parties. Such dispute shall be resolved before a single arbitrator with at least fifteen (15) years experience as a mergers and acquisitions lawyer or comparable expertise, chosen from a list of arbitrators provided by JAMS and mutually agreed upon in writing by the parties, before, and pursuant to, the then most applicable rules of, JAMS. The parties agree to use their commercially reasonable efforts JAMS’ Expedited Arbitration Procedures for any claim (or series of related claims) for Losses of up to settle the Escrow Amount. A party making a claim (without an obligation or a series of related claims) for Losses in excess of the Escrow Amount shall request use of such Expedited Arbitration Procedures, but the other Party shall not be obligated to settle) agree to the claims for indemnification set forth in the applicable Notice use of Losssuch procedures. If the Indemnifying Party parties cannot reach an agreement on an arbitrator within fifteen (15) days of receipt of the list provided by JAMS, then on the fifteenth (15th) day, the parties will convene a conference with the JAMS case manager (or such other JAMS staff member as JAMS shall make available). The claimant and the Indemnified Party have not reached a settlement within respondent will alternate striking one arbitrator from the list until one arbitrator is left, which such forty-five daysarbitrator will be appointed. If such arbitrator is unable or unwilling to serve, subject then the next to Section 8.9, last candidate will be chosen. In the Indemnifying Party and event of arbitration each party will pay the Indemnified Party shall be entitled to seek enforcement fees of their respective rights attorneys, the expenses of their witnesses and any other expenses connected with presenting their claim. Other costs of the arbitration, including the fees of the arbitrator, cost of any record or transcript of the arbitration, administrative fees, and other fees and costs shall be borne one-half by each party subject to the dispute. Except as may be necessary to enter judgment upon the award or to the extent required by applicable Law, all claims, defenses and proceedings (including, but not limited to, the existence of a controversy and the fact that there is an arbitration proceeding) will be treated in a confidential manner by the arbitrator and all those involved in the proceeding. Any controversy relating to the arbitration presented to a court will be filed under seal to the extent permitted by Law. An arbitration award rendered pursuant to this Article 7Section 8.06(d) will be final and binding on the parties and may be submitted solely to any state or federal court located in Santa Xxxxx County, California for entry of a judgment thereon.

Direct Claim Indemnification Procedures. The Notice of Loss shall be provided to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim, which shall be governed by Section 8.6). Notwithstanding anything to the contrary set forth in the first sentence of this Section 7.58.5, but subject to Section 7.1(c8.1(d), any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim, which shall be governed by the provisions of Section 7.68.6), shall not relieve any Indemnifying Party from any obligations that it may have to the Indemnified Party under this Section 7.5 8.5 except to the extent that the Indemnifying Party is actually prejudiced by the Indemnified Party’s failure to give such Notice of Loss. The Indemnifying Party shall have forty-five 45 days following the receipt of a Notice of Loss to respond in writing to such Notice of Loss. If the Indemnifying Party fails to respond to a Notice of Loss in writing within forty-five 45 days following the receipt thereof, the Indemnifying Party shall be deemed to have rejected the claims made in such Notice of Loss. If the Indemnifying Party affirmatively elects not to dispute a claim described in a Notice of Loss, then the amount of such claim, as set forth in such Notice of Loss, shall be deemed to be an obligation or liability of such Indemnifying Party payable pursuant to Section 7.98.9. If the Indemnifying Party timely responds in writing disputing any claim in a Notice of Loss, the Indemnifying Party and the Indemnified Party, for forty-five 45 days following the Indemnified Party’s receipt of the Indemnifying Party’s written response, shall use their commercially reasonable efforts to settle (without an obligation to settle) the claims for indemnification set forth in the applicable Notice of Loss. If the Indemnifying Party and the Indemnified Party have not reached a settlement within such forty-five 45 days, subject to Section 8.910.1, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 78.

Direct Claim Indemnification Procedures. The Notice of Loss shall be provided (i) If an Indemnified Party wishes to the Indemnifying make a claim for indemnification hereunder for Losses that do not result from a Third Party as soon as practicable after Claim (a “Direct Claim”), the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim). Notwithstanding anything to the contrary set forth in the first sentence of this Section 7.5, but subject to Section 7.1(c), any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim, which shall be governed by the provisions of Section 7.6), shall not relieve any notify each Indemnifying Party from any obligations that it may have to whom indemnification is sought (or the Indemnified Party under this Section 7.5 except to the extent that Shareholder Representative, where the Indemnifying Party is actually prejudiced a Shareholder Indemnifying Party and indemnification is not being sought hereunder directly from such Shareholder Indemnifying Party) in writing of such Direct Claim (a “Direct Claim Notice”), including a brief summary of the facts underlying or related to such claim to the extent then known by the Indemnified Party’s failure Party and a statement that the Indemnified Party seeks indemnification for Losses relating to give such Notice of Lossclaim. The Indemnifying Party (or the Shareholder Representative, where the Indemnifying Party is a Shareholder Indemnifying Party and indemnification is not being sought hereunder directly from such Shareholder Indemnifying Party) shall have forty-five a period of 30 days following the receipt of a Notice of Loss within which to investigate and respond in writing to such Notice Direct Claim and the Indemnified Party shall reasonably cooperate with such investigation and response. (ii) If the Indemnifying Party (or the Shareholder Representative, where the Indemnifying Party is a Shareholder Indemnifying Party and indemnification is not being sought hereunder directly from such Shareholder Indemnifying Party) accepts a Direct Claim or does not respond within such 30-day period, the Indemnifying Party will be deemed to have accepted the Direct Claim and to have conclusively acknowledged its obligation to indemnify the Indemnified Party with respect to all Losses imposed on, sustained, incurred or suffered by, or asserted against the Indemnified Party in respect of Losssuch Direct Claim. If the Indemnifying Party fails to respond to a Notice of Loss in writing within forty-five days following (or the receipt thereofShareholder Representative, where the Indemnifying Party shall be is a Shareholder Indemnifying Party and indemnification is not being sought hereunder directly from such Shareholder Indemnifying Party) accepts or is deemed to have rejected accept the claims made in Direct Claim within 30 days after the date of such Notice of Loss. If acceptance, it shall pay (or, where the Indemnifying Party affirmatively elects is a Shareholder Indemnifying Party, the Shareholder Representative shall instruct the Escrow Agent to pay) the amount of Losses (if any) specified in the Direct Claim Notice for which the Indemnifying Party (or the Shareholder Representative, where the Indemnifying Party is a Shareholder Indemnifying Party and indemnification is not to dispute a claim described in a being sought hereunder directly from such Shareholder Indemnifying Party) has accepted indemnification at that time (which amount shall not be conclusive of the final amount of such Direct Claim). (iii) A Claim Notice shall state the estimated amount of Loss, then Losses (which estimate shall not be conclusive of the final amount of such claim, as set forth in such Notice of Loss, shall be deemed to be an obligation or liability of such Indemnifying Party payable pursuant to Section 7.9. If the Indemnifying Party timely responds in writing disputing any claim in a Notice of Loss, the Indemnifying Party and the Indemnified Party, for forty-five days following the Indemnified Party’s receipt of the Indemnifying Party’s written response, shall use their commercially reasonable efforts to settle (without an obligation to settle) the claims for indemnification set forth in the applicable Notice of Loss. If the Indemnifying Party and that the Indemnified Party have not reached a settlement within such forty-five daysbelieves it has sustained, subject incurred or suffered or reasonably anticipates to Section 8.9sustain, incur or suffer with respect to any Third Party Claim or Direct Claim and identify the Indemnifying Party representations and warranties contained herein that the Indemnified Party shall be believes were breached or otherwise identify the basis upon which the Indemnified Party believes that it is entitled to seek enforcement indemnification (which basis shall not be conclusive of their respective rights under this Article 7the final determination of liability for indemnification).

Direct Claim Indemnification Procedures. The Notice of Loss shall be provided to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party ClaimClaim which shall be governed by the provisions of Section 7.5). Notwithstanding anything to the contrary set forth in the first sentence of this Section 7.57.4, but subject to Section 7.1(c), any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss (other than in connection with or related to a Third-Party Claim, which shall be governed by the provisions of Section 7.67.5), shall not relieve any Indemnifying Party from any obligations that it may have to the Indemnified Party under this Section 7.5 7.4 except to the extent that the Indemnifying Party is actually prejudiced by the Indemnified Party’s failure to give such Notice of Loss. The Indemnifying Party shall have forty-five 30 days following the receipt of a Notice of Loss to respond in writing to such Notice of Loss. If the Indemnifying Party fails to respond to a Notice of Loss in writing within forty-five 30 days following the receipt thereof, the Indemnifying Party shall be deemed to have rejected the claims made in such Notice of Loss. If the Indemnifying Party affirmatively elects not to dispute a claim described in a Notice of Loss, then the amount of such claim, as set forth in such Notice of Loss, shall be deemed to be an obligation or liability of such Indemnifying Party payable pursuant to Section 7.97.7. If the Indemnifying Party timely responds in writing disputing any claim in a Notice of Loss, the Indemnifying Party and the Indemnified Party, for forty-five 30 days following the Indemnified Party’s receipt of the Indemnifying Party’s written response, shall use their commercially reasonable efforts to settle (without an obligation to settle) the claims for indemnification set forth in the applicable Notice of Loss. If the Indemnifying Party and the Indemnified Party have not reached a settlement within such forty-five 30 days, subject to Section 8.9, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 7.