Common use of Indemnification by Xxxxx Clause in Contracts

Indemnification by Xxxxx. Subject to the limitations set forth in this Article VIII, from and after the Closing, Buyer shall indemnify Seller, its Affiliates, and their Representatives (each, a “Seller Indemnified Party”) against any and all Losses incurred by such Seller Indemnified Party, to the extent arising or resulting from any of the following: (i) any breach of any representation or warranty made by Buyer in the Transaction Documents; (ii) any breach of any covenant or agreement of Buyer contained in the Transaction Documents; and (iii) any Recipient Confidentiality Breach by any Person who receives Confidential Information from or on behalf of Buyer under Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party to the extent resulting from (A) the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Party, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Party.

Indemnification by Xxxxx. Subject to the limitations set forth in provisions of this Article VIIISection 4.1 below, Xxxxx agrees to indemnify and hold harmless each Investor, and each Investor’s officers, employees, affiliates, directors, partners, members, attorneys and agents, and each Person, if any, who controls an Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and after against any expenses, losses, judgments, claims, actions, damages or liabilities (collectively, “Losses”), whether joint or several, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the Closingsale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by Buyer of the Securities Act or any rule or regulation promulgated thereunder applicable to Buyer and relating to action or inaction required of Buyer in connection with any such registration (provided, however, that the indemnification contained in this Section 4.1 shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of Buyer, such consent not to be unreasonably withheld, delayed or conditioned); and Buyer shall indemnify Seller, its Affiliates, promptly reimburse the Investor Indemnified Party for any legal and their Representatives (each, a “Seller Indemnified Party”) against any and all Losses other expenses reasonably incurred by such Seller Investor Indemnified PartyParty in connection with investigating and defending any such Loss; provided, however, that Buyer will not be liable in any such case to the extent arising that any such Loss arises out of or resulting from is based upon any untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to Buyer, in writing, by such selling Investor or Investor Indemnified Party expressly for use therein. Buyer also shall indemnify any Underwriter of the following: (i) any breach of any representation or warranty made by Buyer in the Transaction Documents; (ii) any breach of any covenant or agreement of Buyer contained in the Transaction Documents; and (iii) any Recipient Confidentiality Breach by any Registrable Securities, their officers, affiliates, directors, partners, members and agents and each Person who receives Confidential Information from or controls such Underwriter on behalf substantially the same basis as that of Buyer under the indemnification provided above in this Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party to the extent resulting from (A) the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Party, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Party4.1.

Indemnification by Xxxxx. Subject to the limitations set forth in this Article VIII, from and after the Closing, Buyer shall defend, indemnify Sellerand hold harmless Seller and its shareholders, its Affiliatesmembers, directors, officers, employees and their Representatives agents (each, each a “Seller Indemnified PartyIndemnitee”) from and against any and all Losses incurred claims (including without limitation any investigation, action or other proceeding), damages, losses, liabilities, costs and expenses (including without limitation reasonable attorney’s fees and court costs) that constitute, or arise out of or in connection with: (a) any misrepresentation or breach of warranty of Buyer under Article III; (b) any default by such Seller Indemnified PartyBuyer in the performance or observance of any of its covenants or agreements under this Agreement; (c) any Assumed Liabilities; and (d) Xxxxx’s ownership or operation of the Business following the Closing; provided, that Buyer shall not have any liability under clause (a) above (other than with respect to the extent arising Fundamental Representations, fraud or resulting from intentional misrepresentation), unless the aggregate of all Losses relating thereto for which the Buyer would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $50,000 (the “Buyer Deductible”), at which time Buyer shall be liable for the full amount of all such Losses including the Deductible; and Xxxxx’s aggregate liability under clause (a) above (other than with respect to, the Fundamental Representations, fraud or intentional misrepresentation) shall in no event exceed twenty percent (20%) of the Purchase Price paid with it being understood, however, that nothing in this Agreement (including this Section 6.2) shall limit or restrict any of the following: (i) Seller Indemnitees’ rights to maintain or recover any breach of amounts in connection with any representation action or warranty claim based upon fraud or intentional misrepresentation made by Buyer in the Transaction Documents; this Agreement. Xxxxx’s maximum aggregate liability with respect to claims for indemnification made pursuant to Section 6.2(a) on account of breaches of a Fundamental Representation (ii) any breach of any covenant or agreement of Buyer contained other than in the Transaction Documents; and (iii) any Recipient Confidentiality Breach by any Person who receives Confidential Information from event of fraud or on behalf of Buyer under Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party to the extent resulting from (A) the bad faith, gross negligence, intentional misrepresentation) will be limited to an amount equal to thirty percent (30%) of the Purchase Price. Asset Purchase Agreement – 2024 Human Bees, willful misconduct or fraud Inc. & ShiftPixy, Inc. Page 47 of any Seller Indemnified Party, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Party.61

Indemnification by Xxxxx. Subject to the limitations set forth in terms and conditions of this Article VIII6, from Xxxxx will indemnify, defend and after the Closinghold harmless Sellers, Buyer shall indemnify Seller, its their respective Affiliates, and their Representatives respective successors and assigns (each, a the “Seller Indemnified PartyIndemnitees”) from and against the entirety of any and all Losses incurred by Adverse Consequences they may suffer or incur (including any Adverse Consequences they may suffer or incur after the end of any applicable survival period, provided that an indemnification claim with respect to such Seller Indemnified Party, Adverse Consequence is made pursuant to this Article 6 prior to the extent end of any applicable survival period) resulting from, arising out of, relating to, in the nature of, or resulting from any of the following: caused by (ia) any breach or inaccuracy of any representation or warranty made by Buyer in the Transaction Documents; Section 2.2 or (iib) any breach of any covenant or agreement of Buyer contained in this Agreement. Buyer will also indemnify, defend and hold harmless Seller Indemnitees with regard to any Adverse Consequences (which, for purposes hereof, does not include diminution of value of the Transaction Documents; and (iiiBuyer Shares or the Warrants) they incur relating to the proxy statement solicitation that is ongoing as of the Closing Date, or any Recipient Confidentiality Breach by any Person who receives Confidential Information Proceeding arising from or on behalf of Buyer relating to such proxy statement solicitation (the “Proxy Solicitation”); provided, that if the purchase option described in Section 4.13 is exercised by Sellers and such repurchase is actually consummated, the indemnifiable Adverse Consequences under this Section 6.1. The foregoing 6.2(b) shall exclude any Losses of any Seller Indemnified Party be limited to the extent resulting from (A) the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud expense reimbursement contemplated by Section 4.13 and any other reasonable out of any Seller Indemnified Party, (B) any matter pocket expenses incurred by Sellers in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance connection with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified PartyProxy Solicitation.

Indemnification by Xxxxx. (a) Subject to the limitations set forth in terms and conditions of this Article VIII, from and after the Closing, Buyer shall indemnify and hold harmless Seller, its Affiliates, Affiliates and their Representatives respective officers, directors, managers, employees, agents, successors and permitted assigns (each, a “Seller Indemnified PartyPersons”) ), against and from any and all Losses Damages which are suffered, sustained or incurred by such Seller Indemnified Party, to the extent arising or resulting from any of the following: foregoing Seller Indemnified Persons (regardless of whether or not such Damages relate to any Third Party Claim) and which arise from or as a result of: (i) any inaccuracy in or breach of any representation or warranty made by of Buyer set forth in the Transaction Documents; this Agreement or any Ancillary Agreement; (ii) any breach of any covenant covenant, agreement or agreement of Buyer contained in the Transaction Documentsobligation to be performed under this Agreement by Buyer; and (iii) any Recipient Confidentiality Breach by failure to satisfy, perform or discharge any Person who receives Confidential Information from Assumed Liabilities; or on behalf (iv) except for Excluded Liabilities, any Liability arising out of the ownership or operation of the Transferred Assets or the Product after the Closing Date, including any Liability arising out of the Development, manufacture, commercialization or other exploitation of any Product. (b) No amount shall be payable and there shall be no liability for Buyer for indemnification under Section 6.1. The foregoing shall exclude any Losses 8.2(a)(i), unless the amount of any Damages incurred by a Seller Indemnified Party Person exceeds the Threshold Amount, after which point the Threshold Amount shall be recoverable along with all other amounts for Damages by a Seller Indemnified Person. (c) Buyer’s maximum liability under this Agreement for Damages incurred by Seller Indemnified Persons shall not exceed the Cap. (d) Notwithstanding anything to the extent contrary contained herein, the limitations set forth in this Section 8.2 shall not apply to Damages arising out of or resulting from (AI) Fraud, (II) the bad faithitems set forth in Section 8.2(a)(ii), gross negligence8.2(a)(iii), intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Partyand 8.2(a)(iv), (BIII) any matter in respect a breach of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a)the Fundamental Representations, or (CIV) acts or omissions any failure of Buyer taken (to pay the amount payable for the Inventory or omitted the Payments to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified PartySeller.

Indemnification by Xxxxx. Subject The Buyer agrees to indemnify and hold harmless the limitations set forth in this Article VIII, from and after the Closing, Buyer shall indemnify Seller, its AffiliatesCompany, and their Representatives each of its directors and officers (eachincluding each director and officer of the Company who signed a Registration Statement), a “Seller Indemnified Party”and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, solely with respect to information provided by the Buyer referred to in the proviso to this Section 4.2, as follows: (a) against any and all Losses incurred loss, liability, claim, damage, action, cost, judgment and expense whatsoever, as incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) pursuant to which the Registrable Securities of the Buyer were registered under the Securities Act, including all documents incorporated therein by such Seller Indemnified Partyreference, or in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (b) against any and all loss, liability, claim, damage, judgment and expense whatsoever, as incurred, to the extent arising or resulting from any of the following: (i) any breach aggregate amount paid in settlement of any representation litigation, or warranty made investigation or proceeding by Buyer in the Transaction Documents; (ii) any breach governmental agency or body, commenced or threatened, or of any covenant claim whatsoever based upon any such untrue statement or agreement omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of Buyer contained in the Transaction DocumentsBuyer; and (iiic) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing, defending against or participating in (as a witness or otherwise) any Recipient Confidentiality Breach litigation, or investigation or proceeding by any Person who receives Confidential Information from governmental agency or on behalf of Buyer under Section 6.1. The foregoing shall exclude body, commenced or threatened, in each case whether or not a party, or any Losses of claim whatsoever based upon any Seller Indemnified Party such untrue statement or omission, or any such alleged untrue statement or omission, to the extent resulting from (Athat any such expense is not paid under Sections 4.2(a) or 4.2(b) above; provided, however, that the bad faithindemnity provided pursuant to this Section 4.2 shall only apply with respect to any loss, gross negligenceliability, intentional misrepresentationclaim, willful misconduct damage, action, cost judgment or fraud expense to the extent arising out of any Seller Indemnified Party, untrue statement or omission or alleged untrue statement or omission made in good faith reliance upon and in conformity with written information furnished to the Company by the Buyer expressly for use in the Registration Statement (Bor any amendment thereto) or the Prospectus (or any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(aamendment or supplement thereto), to the extent incorporated therein. Notwithstanding the provisions of this Section 4.2, the Buyer and any permitted assignee shall not be required to indemnify the Company, its officers, directors or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due control persons with respect to any Seller Indemnified Party hereunder amount in accordance with and subject excess of the amount of the total net proceeds to the termsBuyer or such permitted assignee, conditions and procedures as the case may be, from sales of this Article VIII shall (if not otherwise paid) be payable by the Registrable Securities of the Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Partyunder the Registration Statement or Prospectus, as applicable, that is the subject of the indemnification claim.

Indemnification by Xxxxx. Subject to the limitations set forth in this Article VIIIServe shall indemnify, from defend and after the Closinghold harmless Magna, Buyer shall indemnify SellerMagna Affiliates and their respective directors, its Affiliatesofficers, employees, agents, representatives, successors, and their Representatives assigns (“Magna Indemnitees”) from any and all Losses and threatened Losses to which any Magna Indemnitee becomes subject, due to, arising from or relating to third party claims, demands, actions or threats of action (whether in law, equity or in an alternative proceeding) (each, a “Seller Indemnified PartyClaim” and collectively, “Claims”) against any and all Losses incurred by such Seller Indemnified Partyresulting from, to the extent arising out of or resulting from any of the followingotherwise in connection with: (ia) Serve’s breach of any provision of this Agreement or the inaccuracy, untruthfulness, or breach of any representation or warranty made by Buyer in the Transaction DocumentsServe under this Agreement; (ii) any breach of any covenant or agreement of Buyer contained in the Transaction Documents; and (iii) any Recipient Confidentiality Breach by any Person who receives Confidential Information from or on behalf of Buyer under Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party to the extent resulting from (Ab) the bad faithintentional, gross negligencewrongful, intentional misrepresentationreckless, willful misconduct or fraud of any Seller Indemnified Partycriminal, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a)fraudulent, or (C) grossly negligent acts or omissions of Buyer taken Serve or other Serve Personnel; (c) any Infringement Claim resulting from, arising out of or omitted relating to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder Intellectual Property Rights in accordance with and subject or to the termsAMR Products, conditions and procedures or any licenses provided hereunder by Serve to Magna or any Magna Affiliate provided, however, that such Infringement Claim is not the result of this Article VIII shall any modifications, combinations or alterations to the AMR Products which are not approved by Serve in writing; (if not otherwise paidd) be payable any action or allegations of a violation of applicable law by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified PartyServe or other Serve Personnel, whether asserted against Serve, other Serve Personnel, Magna, any Magna Affiliate, or any Magna Customer; (e) personal injury (including death) or real or tangible property damage resulting from the grossly negligent or intentionally tortious acts or omissions of Serve or other Serve Personnel; or (f) unauthorized disclosure or misappropriation of Magna, Magna Affiliate, or Magna Customer Confidential Information or User Data.

Indemnification by Xxxxx. Subject (a) From and after the Closing Date, subject to the limitations set forth in other provisions of this Article VIII, from Xxxxx agrees to indemnify Seller and after the Closing, Buyer shall indemnify Seller, its Affiliates, Affiliates and each of their Representatives (eachcollectively, a “the "Indemnified Seller Indemnified Party”Entities") for, and to hold each of them harmless from and against any and all Indemnifiable Losses actually suffered, paid or incurred by any such Indemnified Seller Indemnified PartyEntity resulting from, to the extent arising out of or resulting from any of the followingin connection with: (i) any breach or inaccuracy of any representation or warranty of the representations and warranties made by Buyer in Article IV or the Transaction DocumentsEmployee Matters Agreement; (ii) any breach of failure to perform any covenant or agreement of Buyer contained in this Agreement or the Transaction DocumentsEmployee Matters Agreement that survives the Closing (including in accordance with Section 7.01); (iii) any Assumed Liabilities; (iv) the ownership or use of any Transferred Assets after the Closing, other than with respect to any Excluded Liability. (b) Notwithstanding anything to the contrary contained in this Section 8.02, the Indemnified Seller Entities shall be entitled to indemnification: (i) with respect to any Claim for indemnification pursuant to Section 8.02(a)(i), only if the aggregate of Indemnifiable Losses to all Indemnified Seller Entities with respect to all such Claims exceeds the Deductible, whereupon (subject to the provisions of clauses (ii) and (iii) below) Buyer shall be obligated to pay in full all such amounts but only to the extent such aggregate Indemnifiable Losses are in excess of the amount of the Deductible; provided, however, that the Deductible shall not apply, and shall not be taken into account in determining the Deductible with respect to any Claim for indemnification pursuant to Section 8.02(a)(i) solely with respect to the Buyer Fundamental Representations; (ii) with respect to any Claim for indemnification pursuant to Section 8.02(a)(i), only with respect to individual items where the Indemnifiable Losses relating thereto are in excess of the Minimum Claim Amount (any items less than such threshold shall not be aggregated for the purposes of the immediately preceding clause (i)); provided, however, that the Minimum Claim Amount shall not apply with respect to any Claim for indemnification pursuant to Section 8.02(a)(i) solely with respect to the Buyer Fundamental Representations; and (iii) with respect to any Recipient Confidentiality Breach by any Person who receives Confidential Information from Claim for indemnification pursuant to Section 8.02(a)(i), only if such Claims are made on or on behalf before the expiration of Buyer under the survival period pursuant to Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party 7.01 for the applicable representation or warranty. (c) Notwithstanding anything to the extent resulting from (A) contrary contained in this Agreement, with respect to any Claim for indemnification pursuant to Section 8.02(a)(i), in no event shall Buyer's aggregate Liability to the bad faithIndemnified Seller Entities exceed the Cap; provided, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Partyhowever, (Bi) any matter in that with respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Claim for indemnification pursuant to Section 8.02(a)(i) solely with respect to the Buyer Fundamental Representations the Cap shall not apply, and (ii) Buyer's aggregate Liability to the Indemnified Seller Indemnified Party hereunder in accordance Entities with and respect to all Claims for indemnification pursuant to Section 8.02(a)(i) shall not exceed fifty million dollars ($50,000,000). (d) This Section 8.02 is subject to the terms, conditions and procedures limitations set forth in Section (e) For purposes of this Article VIII Section 8.02, the determination of whether a breach or a violation of any representation or warranty of Buyer in this Agreement has occurred and the amount of Indemnifiable Losses resulting from a breach or inaccuracy of any representation or warranty of Buyer contained in this Agreement shall (be made by disregarding and not giving effect to any qualifiers in this Agreement as to "material adverse effect," "materiality," "in all material respects," or words of similar import and instead interpreting such representation or warranty as if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Partyterms were deleted.

Indemnification by Xxxxx. Subject to the limitations other provisions set forth in this Article VIII, from and after the ClosingARTICLE VII, Buyer shall hereby unconditionally, absolutely and irrevocably agrees to indemnify Sellerand hold harmless the Seller Parties, its their Affiliates, and their Representatives respective managers, officers, directors, employees, shareholders, members, Affiliates, partners, counsel, agents, contractors, successors, assigns, heirs and legal and personal representatives (each, a Seller Parties and such Persons are collectively referred to as the “Seller Seller’s Indemnified PartyPersons”) against any from and all Losses against, each and every Loss paid, imposed on or incurred by such Seller Seller’s Indemnified PartyPersons, to the extent arising directly or indirectly, relating to, resulting from or arising out of, or any of the following: claim by any third party regarding, (ia) any breach of inaccuracy in any representation or warranty made by of Buyer in under this Agreement or any other Transaction Document to which Buyer is a party, other than any real property lease or the Transaction Documents; TSA, (iib) any breach or nonfulfillment of any covenant covenant, agreement or agreement of Buyer contained in the Transaction Documents; and (iii) any Recipient Confidentiality Breach by any Person who receives Confidential Information from or on behalf other obligation of Buyer under Section 6.1. The foregoing shall exclude this Agreement or any Losses other Transaction Document to which Buyer is a party, other than any real property lease or the TSA, (c) any Assumed Liability, (d) the ownership, management or operation of the Assets or the Business, or any Seller Indemnified Party condition in existence with respect to the extent resulting from (A) Assets or the bad faithBusiness, gross negligenceincluding any Environmental Claims, intentional misrepresentationarising after the Closing Date, willful misconduct or fraud of any Seller Indemnified Partyproducts manufactured or sold by the Buyer on or after to the Closing Date, (B) excluding any matter in respect of Excluded Liabilities and except for claims for which any Buyer Buyer’s Indemnified Party would be Person is entitled to indemnification under Section 8.1(a)7.1, (e) Buyer’s Actual Fraud, or (Cf) acts any action or omissions inaction on the part of Buyer taken (which causes a violation of the WARN Act or omitted to be taken) based upon any similar state or local Legal Requirement. The indemnification obligations of the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and Buyer under this ARTICLE VII shall survive the Closing, subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified PartySection 7.3(a).

Indemnification by Xxxxx. (a) Subject to the limitations set forth in this Article VIIISections 7.2 and 8.3, from Xxxxx hereby agrees to indemnify and after the Closinghold Seller and its affiliates and their respective employees, Buyer shall indemnify Sellerofficers, its Affiliatesmanagers, and their Representatives members (each, each a “Seller Indemnified Party”) harmless from and against any and all Losses imposed upon or incurred by such any Seller Indemnified Party, to the extent arising Party as a result of or resulting from in connection with any of the following: (i) any breach of any a representation or warranty made by Buyer in this Agreement or in the Transaction Documentscertificate delivered by Buyer pursuant to Section 6.4(b)(iv) or any agreement or instrument executed in connection herewith or pursuant hereto; (ii) any the breach of any covenant or agreement of Buyer contained default in the Transaction Documentsperformance by Xxxxx of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement or any agreement or instrument executed in connection herewith or pursuant hereto; andor (iii) any Recipient Confidentiality Breach the ownership or operation of the Assets and Assumed Liabilities from and after the Closing Date. (b) Within thirty (30) days after receipt by any Person who receives Confidential Information from or on behalf of Buyer under Section 6.1. The foregoing shall exclude any Losses of any a Seller Indemnified Party of notice of the commencement of an Action or other event giving rise to a claim by a Seller Indemnified Party for indemnification (a “Seller Claim”), the Party receiving such notice shall notify (the “Seller Claim Notice”) Buyer in writing of the commencement of such Action or the assertion of such Seller Claim; provided, however, that failure to give such notice shall not relieve Buyer of its obligations hereunder unless and only to the extent resulting from that Xxxxx is materially prejudiced thereby. Buyer shall have the option, and shall notify Seller Indemnified Party in writing within ten (10) Business Days after its receipt of a Seller Claim Notice of its election, either: (A) to participate (at its own expense) in the bad faith, gross negligence, intentional misrepresentation, willful misconduct defense of the Action or fraud Seller Claim (in which case the defense of any such Action or Seller Claim shall be controlled by Seller Indemnified Party, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Party.or

Indemnification by Xxxxx. 8.3.1 If any sum due for payment in accordance with this Agreement is not paid by the Buyer on the due date for payment, the Buyer shall pay a late payment interest at the rate of 0.01% per day on that sum from but excluding the due date to and including the date of actual payment calculated on a daily basis. 8.3.2 Subject to the limitations as set forth in this Article VIIISection 8.3.3 and Section 8.4, from and after the Closing, the Buyer shall hereby agrees to indemnify Sellerand hold the Sellers, its Affiliates, Affiliates and their Representatives respective directors, officers, employees, agents, successors and assignees (collectively, the “Seller Indemnified Parties” and each, a “Seller Indemnified Party”) harmless from and against any and all Losses incurred by such Seller Indemnified Party, to the extent arising which arise out of or resulting from any of the following: result from: (i) any breach of any representation material breach, violation or warranty made by Buyer in the Transaction Documents; (ii) any breach nonperformance of any covenant or agreement of the Buyer contained in the Transaction Documents; and under this Agreement, and/or (iiiii) any Recipient Confidentiality Breach material inaccuracy or breach of any of the representations or warranties made by any Person who receives Confidential Information from or on behalf of the Buyer under Section 6.1this Agreement. The foregoing shall exclude any Losses For the avoidance of any doubt, nothing in this Xxxxxx released the Seller Indemnified Parties to prove their Losses. 8.3.3 Absent fraud and willful breach, each Seller Indemnified Party shall not be entitled to indemnification under this Section 8.3.2 unless, with respect to the extent resulting from (A) claims of the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Party, (Bi) any matter the amount of the relevant single claim thereunder exceeds RMB 1,000,000 (each a “Seller Qualifying Claim”), and (ii) the aggregate amount of all such Seller Qualifying Claims thereunder exceeds RMB45,000,000 (the “Seller Basket Amount”), in which case the Seller Indemnified Party shall be entitled to the full amount of such claim(s) for the entire amount of such Losses, and not merely the portion of such Losses exceeding the Seller Basket Amount, subject to the Buyer Cap defined below. 8.3.4 Absent fraud and willful breach, the total liability of the Buyer in respect of which any Buyer Indemnified Party would be entitled to indemnification all Loss(es) under Section 8.1(a), or (C) acts or omissions 8.3.2 of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any each Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures shall not exceed 10% of this Article VIII such Seller’s Purchase Price that shall (if not otherwise paid) be payable by the Buyer (the “Buyer Cap”). 8.3.5 Notwithstanding anything to such Seller Indemnified Party within [***] Business Days following written demand delivered the contrary herein, the Buyer’s liability towards the Sellers under this Agreement is subject to Buyer by such Seller Indemnified PartyClosing having occurred. 8.3.6 Notwithstanding anything to the contrary herein, the Buyer’s obligations of paying the Purchase Prices to the Sellers under Section 2.2, Section 2.4, the interest accrued on the Second Payment and the interest under Section 8.3.1 above are not subject to any liability limitations or other restrictions as provided in Sections 8.3.3 and 8.3.4, and none of Sections 8.3.3 or 8.3.4 shall apply to the obligation and liabilities in connection with Buyer’s payment of the Purchase Prices or any interest accrued thereon to the Sellers under Section 2.2, Section 2.4 and Section 8.3.1.

Indemnification by Xxxxx. (a) Subject to the limitations set forth in this Article VIIIparagraph (b) below, from and after the ClosingClosing Date, Buyer shall indemnify Seller, its Affiliates, and their Representatives (each, a “Seller hold harmless Sellers' Indemnified Party”) against Persons from any and all Losses directly or indirectly incurred by such Seller Indemnified Party, or sought to the extent arising or resulting from any of the followingbe imposed upon them: (i) resulting from or arising out of any breach of any representation of the representations or warranty warranties made by Buyer Buyer, in or pursuant to this Agreement, any Ancillary Agreements, any Parallel Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or thereto or in connection with the Transaction DocumentsClosing; (ii) resulting from or arising out of any breach of any covenant or agreement made by Buyer or Parent in or pursuant to this Agreement, any Ancillary Agreements, any Parallel Agreement or in any agreement, document or instrument executed and delivered pursuant hereto or thereto or in connection with the Closing; or (iii) resulting from or arising out of Xxxxx's fraud. (b) The right of indemnification under paragraph (a) above is subject to the following limitations: (i) Buyer contained in shall have no liability under paragraph (a) above unless a Sellers' Indemnified Person gives written notice to Xxxxx asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the Transaction Documentsexpiration of the period set forth below: (A) for claims under clause (i) of paragraph (a) above, two (2) years from the Closing Date; and (iii) any Recipient Confidentiality Breach by any Person who receives Confidential Information from or on behalf of Buyer under Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party to the extent resulting from (A) the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Party, (B) for claims under clause (ii)-(iii) of paragraph (a) above, for so long as any matter claim may be made in respect of such matters under any applicable statute of limitations, as it may be extended. (ii) The gross amounts with respect to a claim for indemnification for which any the Buyer Indemnified Party would may be entitled liable to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any all Seller Indemnified Party. Any amounts determined Persons pursuant to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII 8 and corresponding provisions of the Parallel Agreements shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Partyexceed the aggregate fair market value of the Company's capital stock on the Closing Date.

Indemnification by Xxxxx. Subject Xxxxx agrees to defend Xxxxxxxxx and its directors, officers, stockholders, employees and agents (the limitations set forth in this Article VIII“Cardurion Indemnified Parties”), at Xxxxx’s cost and expense, and will indemnify and hold the Cardurion Indemnified Parties harmless from and after the Closing, Buyer shall indemnify Seller, its Affiliates, and their Representatives (each, a “Seller Indemnified Party”) against any and all Losses incurred by such Seller Indemnified Partyresulting from, to the extent arising out of or resulting from any of the followingotherwise relating to: (ia) any breach of any representation or warranty made of Imara contained in this Agreement or in any Ancillary Agreement delivered by Buyer in the Transaction DocumentsImara pursuant to this Agreement; (iib) any breach of, or failure by Imara to perform or observe, or to have performed or observed, any covenant, agreement or condition to be performed or observed by any of them under this Agreement or any Ancillary Agreement delivered by Imara pursuant to this Agreement; (c) the use by Imara of any covenant or agreement of Buyer contained in the Transaction DocumentsRequested Information, subject to Section 9.5(d); andor (iiid) any Recipient Confidentiality Breach Excluded Liability, including the Exploitation of any Licensed Compound or Licensed Product by any Person who receives Confidential Information from or on behalf of Buyer under Section 6.1. The foregoing Imara or its Affiliates prior to the Closing Date; provided, that, Imara shall exclude not be obligated to indemnify Cardurion’ Indemnified Parties for any Losses pursuant to this Section 9.4 for which Cardurion is obligated to indemnify Imara’s Indemnified Parties pursuant to Section 9.5. In the event of any Seller Losses resulting from the assertion of liability by a Third Party against the Cardurion Indemnified Parties by a Third Party (a “Third Party Claim”), (A) Cardurion shall promptly notify Imara in writing of the Third Party Claim (provided, that, any failure or delay to so notify Imara shall not excuse any obligations of Imara except to the extent resulting Imara is actually prejudiced thereby) and Imara shall have the right to solely manage and control, at is sole expense, the defense of the Third Party Claim and its settlement; provided, that, Imara shall not settle any such Third Party Claim without the prior written consent of Cardurion if such settlement does not include a complete release of Cardurion Indemnified Parties from liability or if such settlement would involve undertaking an obligation (A) including the bad faithpayment of money by a Cardurion Indemnified Party), gross negligence, intentional misrepresentation, willful misconduct would bind or fraud of any Seller impair a Cardurion Indemnified Party, or includes any admission of wrongdoing or that any intellectual property or proprietary right of Cardurion is invalid or unenforceable and (B) the Cardurion Indemnified Parties shall cooperate with Imara and may, at their option and expense, be represented in any matter in such action or proceeding by counsel of their own choosing. With respect of which to any Buyer Indemnified Third Party would be entitled Claim subject to indemnification under this Section 8.1(a), 9.4: (1) the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any such Third Party Claim and (2) the Parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all Confidential Information and information protected by the attorney-client and work-product privileges in any such action or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Partyproceeding. Any amounts determined to be due to any Seller Indemnified Third Party hereunder Claim that is asserted in accordance with and subject writing as provided in this Section 9.4 prior to the termsexpiration date, conditions if any, applicable to the representation, warranty or covenant set forth in Section 9.1 with respect to which such Third Party Claim is made shall survive until finally resolved and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Partysatisfied in full.

Indemnification by Xxxxx. Subject to the limitations set forth in this Article VIII, from From and after the Closing, Buyer subject to the provisions of this Article 7, Xxxxx shall indemnify Sellerdefend, its Affiliatesindemnify, and hold Seller and its Affiliates and their Representatives respective officers, directors, employees, and agents (eachcollectively, a the “Seller Indemnified PartyIndemnitees”) harmless from and against any and all Losses loss, claim, demand, obligation, judgement, damage, fine, deficiency, penalty, Liability, Tax, or other cost, expense or adverse effect whatsoever, whether or not arising out of or involving the claims of a Third Party or incurred by such Seller Indemnified Partywith investigating, to the extent arising defending or resulting from settling any of the following: foregoing (including reasonable attorneys’ or other reasonable professional fees and expenses and court costs) (collectively, “Loss”) suffered by any Seller Indemnitee resulting from or arising out of: (i) any inaccuracy in or breach of any representation or warranty made by Buyer in the under this Agreement, any Transaction Documents; Document or any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, (ii) any breach of by Buyer of, or any failure by Buyer to perform, any covenant or agreement of of, or required to be performed by, Buyer contained in the Transaction Documents; and under this Agreement, (iii) any Recipient Confidentiality Breach by any Person who receives Confidential Information Claim from a Third Party based upon, resulting from or arising out of the development, manufacture, commercialization, or other exploitation of the Acquired Assets after the Closing with respect to circumstances, actions, events or conditions occurring or existing following the Closing (a “Third Party Post-Closing Claim”); provided, that such circumstance, action, event or condition was not occurring or existing on behalf or before the Closing Date, (iv) any Assumed Liabilities, and/or (v) any Fraud of Buyer under Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party to the extent resulting from (A) the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Party, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such Seller Indemnified Partyits Affiliates.

Indemnification by Xxxxx. Subject to the limitations set forth in this Article VIII, from (a) From and after the ClosingClosing and subject to the provisions of this Article XII, Buyer Xxxxx shall indemnify indemnify, defend and hold harmless Seller, its AffiliatesAffiliates and their respective officers, directors, employees, agents, successors and permitted assigns (collectively, the “Seller Indemnified Parties”, and their Representatives (eacheach of the Buyer Indemnified Parties and the Seller Indemnified Parties, a an “Seller Indemnified Party”) from, against and in respect of, and compensate and reimburse them for, any and all Losses imposed on, sustained, incurred or suffered by such any of the Seller Indemnified Party, Parties to the extent arising out of or resulting from any of the followingfrom: (i) any the breach of any representation or warranty made by Buyer in this Agreement or the Transaction Documentscertificate delivered by Buyer pursuant to Section 10.2(c)(ii); (ii) any the breach of any covenant or agreement of Buyer contained in the Transaction Documentsthis Agreement; andor (iii) any Recipient Confidentiality Breach Assumed Liability. (b) Buyer shall have no Liability for any claim for indemnification pursuant to Section 12.3(a)(i) unless the aggregate amount of Losses in respect of breaches of Buyer’s representations and warranties exceeds the Deductible, in which event Buyer shall be liable solely for Losses in excess of the Deductible up to the Cap; provided, however, that the foregoing limitations set forth in this Section 12.3(b) shall not apply to (x) breaches of Fundamental Representations, or (y) claims based upon Fraud with respect to the representations and warranties made by Buyer in this Agreement or the certificate delivered by Buyer pursuant to Section 10.2(c)(ii). (c) Other than in the case of breaches of the Fundamental Representations or Fraud with respect to the representations and warranties made by Buyer in this Agreement or the certificate delivered by Buyer pursuant to Section 10.2(c)(ii), Buyer’s aggregate liability for indemnification under Section 12.3(a)(i) shall in no event exceed the Cap; provided, that to the extent that Seller or any Person who receives Confidential Information other Seller Indemnified Party is not able to recover any Losses resulting from any such breach solely as a result of the Cap in effect at such time, and the amount of the Cap subsequently increases, then the amount of any such unrecovered Losses for such breach shall be recoverable subject to such increased Cap; provided, further, that, for clarity, the foregoing proviso shall not extend the applicable survival period under Section 12.1. (d) Other than in the case of Fraud with respect to the representations and warranties made by Buyer in this Agreement or on behalf the certificate delivered by Buyer pursuant to Section 10.2(c)(ii), the cumulative indemnification obligations of Buyer under Section 6.1. The foregoing shall exclude any Losses Sections 12.3(a)(i) and 12.3(a)(ii) (other than in the case of any Seller Indemnified Party to the extent resulting from (A) the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified Party, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject to the terms, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such Seller Indemnified Party within [***] Business Days following written demand delivered to Buyer by such ]) shall in no event exceed, in the aggregate, [***]. To the extent that Seller or any other Seller Indemnified PartyParty is not able to recover any Losses resulting from any such breach solely as a result of the limitation in the immediately preceding sentence, and the aggregate of the amount actually received by and the amount due and payable (but not yet paid) to Seller under this Agreement subsequently increases, then the amount of any such unrecovered Losses for such breach shall be recoverable up to the amount of such increase; provided, that, for clarity, this sentence shall not extend the applicable survival period under Section 12.1. (e) The right of Seller to indemnification pursuant to Section 12.3 will not be affected by any investigation conducted or knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to any accuracy of any representation or warranty, or performance of or compliance with any covenant or agreement herein. [***].

Indemnification by Xxxxx. Subject to the limitations set forth in this Article VIII, from From and after the Closing, and subject to the provisions of this Article VII, Buyer shall indemnify indemnify, defend and hold harmless Seller, its Affiliates and its and its Affiliates’ respective successors and permitted assigns, and each in their Representatives capacity as such (eachcollectively, a the “Seller Indemnified Parties,” and each of the Buyer Indemnified Parties and the Seller Indemnified Parties, an “Indemnified Party”) from, against and in respect of any and all Losses sustained or incurred or suffered by such Seller Indemnified Party, to the extent arising or resulting from any of the followingSeller Indemnified Parties arising out of or in connection with: (a) the breach of any (i) any breach of any representation Buyer Fundamental Representation or warranty made by Buyer in the Transaction Documents; (ii) any Non-Fundamental Buyer Representation, in each case, as of the Closing Date; (b) the breach of any covenant or agreement of made by Buyer contained in this Agreement; or (c) any Assumed Liabilities. Notwithstanding the foregoing in the Transaction Documents; and (iii) any Recipient Confidentiality Breach by any Person who receives Confidential Information from or on behalf first sentence of Buyer under this Section 6.1. The foregoing shall exclude any Losses of any Seller Indemnified Party to the extent resulting from 7.3, (A) the bad faith, gross negligence, intentional misrepresentation, willful misconduct or fraud of any Seller Indemnified PartyParties shall not be entitled to be indemnified, defended or held harmless against any Losses pursuant to Section 7.3(a)(ii) with respect to any claim unless such claim (Bindividually or in the aggregate with any related claims) involves Losses in excess of $50,000 (nor shall any matter in respect such claim (or claims) that does not meet such threshold be applied to or considered for purposes of calculating the aggregate amount of the Seller Indemnified Parties’ Losses for which any Buyer Indemnified Party it would be entitled to indemnification under the next sentence of this paragraph of Section 8.1(a7.3 below), and (B) Buyer shall not be required to indemnify, defend or (C) acts or omissions of Buyer taken (or omitted to be taken) based upon the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to hold harmless any Seller Indemnified Party hereunder in accordance with and against any Losses (x) under Section 7.3(a)(ii) until the aggregate amount of Losses for which the Seller Indemnified Parties are determined pursuant to a Final Determination to be otherwise entitled to indemnification under Section 7.3(a)(ii) exceeds $6,000,000 (the “Buyer Deductible”), after which the Seller Indemnified Parties shall be entitled to indemnification for all of their respective Losses (subject to the termsother limitations set forth in this Agreement) for which the Seller Indemnified Parties are determined pursuant to a Final Determination to be otherwise entitled to indemnification under Section 7.3(a)(ii) that are in excess of the Buyer Deductible; provided, conditions and procedures of however, this Article VIII sentence does not apply to claims based on Fraud, with respect to which all Losses shall be recoverable from the first dollar; (if not otherwise paidy) be payable pursuant to Section 7.3(a)(i) in a cumulative aggregate amount (taking into account all amounts paid by Buyer pursuant to such Seller Indemnified Party within [***] Business Days following written demand delivered Section 7.3(a)(i)) exceeding the Base Purchase Price; and (z) pursuant to Section 7.3(a)(ii) in a cumulative aggregate amount (taking into account all amounts paid by Buyer by such Seller Indemnified Partypursuant to Section 7.3(a)(ii)) exceeding $3,000,000; provided that the foregoing limitation in this paragraph of Section 7.3 shall not apply to claims based on Fraud.

Indemnification by Xxxxx. Subject (a) Buyer hereby agrees to the limitations set forth in this Article VIIIindemnify and hold Seller and its employees, from and after the Closingofficers, Buyer shall indemnify Sellermanagers, its Affiliatesmembers, and their Representatives affiliates (each, each a “Seller Indemnified Party”) harmless from and against any and all Losses imposed upon or incurred by such any Seller Indemnified PartyParty (any of such Losses by Seller, to the extent arising a “Seller Claim”) as a result of or resulting from in connection with any of the following: (i) any the breach of any a representation or warranty made by Buyer in the Transaction Documentsthis Agreement; (ii) any the breach of any covenant or agreement of Buyer contained default in the Transaction Documentsperformance by Xxxxx of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement or any agreement or instrument executed in connection herewith or pursuant hereto; (iii) the failure to obtain any consent to assign set forth on Schedule 3.2, other than the Required Consents; (iv) the Additional Liabilities; and (iiiv) any Recipient Confidentiality Breach the Assumed Liabilities. (b) Within 30 days after receipt by any Person who receives Confidential Information from or on behalf of Buyer under Section 6.1. The foregoing shall exclude any Losses of any a Seller Indemnified Party of notice of the commencement of an Action or other event giving rise to a Seller Claim with respect to which a Seller Indemnified Party may be entitled to indemnification, the extent resulting from party receiving such notice shall notify (Athe “Seller Claim Notice”) Buyer in accordance with Section 11.5, in writing of the bad faithcommencement of such Action or the assertion of such Seller Claim. Buyer shall have the option, gross negligenceand shall notify each indemnified party in writing within 10 Business Days after the date of the Seller Claim of its election, intentional misrepresentation, willful misconduct either: (i) to participate (at its own expense) in the defense of the Action or fraud Seller Claim (in which case the defense of any such Action or Seller Claim shall be controlled by the Seller Indemnified Party, (B) any matter in respect of which any Buyer Indemnified Party would be entitled to indemnification under Section 8.1(a), or (Cii) acts to take charge of and control defense of such Action or omissions of Buyer taken Seller Claim (or omitted at its own expense). If Xxxxx fails to be taken) based upon notify the express written instructions from any Seller Indemnified Party. Any amounts determined to be due to any Seller Indemnified Party hereunder in accordance with and subject of its election within the applicable response period, then Buyer shall be deemed to have elected not to control the termsdefense of such Action or Seller Claim. If Buyer elects to control the defense of any Action or Seller Claim, conditions and procedures of this Article VIII shall (if not otherwise paid) be payable by Buyer to such each Seller Indemnified Party within [***] Business Days following written demand delivered shall have the right to employ separate counsel and participate in the defense of any such Action or Seller Claim. (c) If Buyer by such does not control the defense of any Action or Seller Claim, then the Seller Indemnified PartyParty or parties may only settle such Action or Seller Claim with the prior written consent of Buyer (not to be unreasonably withheld).