Common use of Indemnification Conditions Clause in Contracts

Indemnification Conditions. Promptly after receipt by Network-1 or FalconStor of notice of any claim that may affect the Licensed Product or the commencement of any action, proceeding, or investigation in respect of which indemnity or reimbursement may be sought as provided above, such party (the "Indemnitee") shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee to notify the Indemnitor with respect to a particular action, proceeding or investigation shall not relieve the Indemnitor from any obligation or liability (i) which it may have pursuant to this Agreement if the Indemnitor is not substantially prejudiced by the failure to notify or (ii) which it may have otherwise than pursuant to this Agreement. The Indemnitor shall promptly assume the defense of the Indemnitee with counsel reasonably satisfactory to the Indemnitee, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnitor. The Indemnitee will cooperate with the Indemnitor in the defense of any action, proceeding or investigation for which the Indemnitor assumes the defense. Notwithstanding the foregoing, the Indemnitee shall have the right to employ separate counsel in any action, proceeding, or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless (i) the Indemnitor has agreed to pay such fees and expenses, (ii) the Indemnitor shall have failed promptly to assume the defense of such action, proceeding or investigation and employ counsel reasonably satisfactory to the Indemnitee, or (iii) in the reasonable judgment of the Indemnitee there may be one or more defenses available to the Indemnitee which are not available to the Indemnitor with respect to such action, claim, or proceeding, in which case the Indemnitor shall not have the right to assume the defense of such action, proceeding or investigation on behalf of the Indemnitee. The Indemnitor shall not be liable for the settlement by the Indemnitee of any action, proceeding or investigation effected without its consent, which consent shall not be unreasonably withheld. The Indemnitor shall not enter into any settlement in any action, suit or proceeding to which the Indemnitee is a party, unless such settlement includes a general release of the Indemnitee with no payment by the Indemnitee of consideration.

Indemnification Conditions. Promptly after receipt by Network-1 or FalconStor A Party’s obligation to indemnify as provided in this Agreement is conditioned upon (i) the indemnified Party promptly notifying the indemnifying Party in writing within a reasonable period of notice time of any claim and all claims for which the indemnified Party is entitled to indemnification, provided, however, that may affect any failure on the Licensed Product or part of such indemnified Party to so notify the commencement indemnifying Party shall not limit any of the indemnified Party’s rights to indemnification under this Section 8 except to the extent such failure materially prejudices the defense of such claim, (ii) giving the indemnifying Party sole control of the defense thereof and any actionrelated settlement negotiations, proceedingprovided, or investigation however, that if an indemnified Party reasonably determines that a conflict of interest exists in respect of which indemnity or reimbursement may be sought as provided abovesuch claim, such party (the "Indemnitee") shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee to notify the Indemnitor with respect to a particular action, proceeding or investigation shall not relieve the Indemnitor from any obligation or liability (i) which it may have pursuant to this Agreement if the Indemnitor is not substantially prejudiced by the failure to notify or (ii) which it may have otherwise than pursuant to this Agreement. The Indemnitor shall promptly assume the defense of the Indemnitee with counsel reasonably satisfactory to the Indemnitee, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnitor. The Indemnitee indemnified Party will cooperate with the Indemnitor in the defense of any action, proceeding or investigation for which the Indemnitor assumes the defense. Notwithstanding the foregoing, the Indemnitee shall have the right to employ separate counsel to represent such indemnified Party and in any actionthat event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel and local counsel for all indemnified Parties) shall be paid by such indemnifying Party, proceedingand (iii) the indemnified Party cooperating and, or investigation at the indemnifying Party’s request and to expense, assisting in such defense. The indemnified Party may participate in the defense thereofof the claim with counsel of its own choosing at its own expense, but subject to the indemnifying Party’s obligation to pay the fees and expenses of such separate counsel shall be at the expense of the Indemnitee unless (ibut not more than one separate counsel and local counsel for all indemnified Parties) the Indemnitor has agreed pursuant to pay such fees and expenses, clause (ii) of this Section 8.4 in the Indemnitor shall have failed promptly to assume event a conflict exists. The indemnifying Party may not settle any such claim without the defense of such action, proceeding or investigation and employ counsel reasonably satisfactory indemnified Party’s prior written consent to the Indemnitee, extent that any such settlement affects the rights or (iii) in the reasonable judgment liabilities of the Indemnitee there may be one or more defenses available to the Indemnitee which are not available to the Indemnitor with respect to such action, claim, or proceeding, in which case the Indemnitor shall not have the right to assume the defense of such action, proceeding or investigation on behalf of the Indemnitee. The Indemnitor shall not be liable for the settlement by the Indemnitee of any action, proceeding or investigation effected without its consentindemnified Party, which consent shall not be unreasonably withheld. The Indemnitor shall not enter into withheld or delayed, provided, however, that indemnified Party may withhold its consent to any settlement in any action, suit or proceeding to which the Indemnitee is that does not include a party, unless such settlement includes a full general release of all the Indemnitee with no payment claims against all of such party’s Indemnified Parties contemplated by the Indemnitee demand, claim or suit from all other parties to such matter or that requires such Party or any of considerationits Affiliates to perform any covenant or refrain from engaging in any activity.

Indemnification Conditions. Promptly after receipt The obligations and liabilities of the indemnifying party with respect to claims made by Network-1 or FalconStor of third parties shall be subject to the following conditions: (i) The indemnified party shall give the indemnifying party prompt written notice of any claim that may affect the Licensed Product or the commencement of any action, proceeding, or investigation in respect of which indemnity or reimbursement may be sought as provided above, such party (the "Indemnitee") shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee to notify the Indemnitor with respect to a particular action, proceeding or investigation shall not relieve the Indemnitor from any obligation or liability (i) which it may have pursuant to this Agreement if the Indemnitor is not substantially prejudiced by the failure to notify or (ii) which it may have otherwise than pursuant to this Agreement. The Indemnitor shall promptly assume the defense of the Indemnitee with counsel reasonably satisfactory to the Indemniteeclaim, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnitor. The Indemnitee will cooperate with the Indemnitor in the defense of any action, proceeding or investigation for which the Indemnitor assumes the defense. Notwithstanding the foregoing, the Indemnitee indemnifying party shall have the right to employ separate counsel in any action, proceeding, or investigation and to participate in undertake the defense thereof, but at the indemnifying party's expense, by representatives chosen by it and reasonably acceptable for the indemnified party; (ii) If the indemnifying party undertakes the defense of any such claim, the indemnified party shall, to the best of its ability, assist the indemnifying party, at the indemnifying party's expense, in the defense of such claim, and shall promptly send to the indemnifying party, at the indemnifying party's expense, copies of any documents received by the indemnified party which relate to such claim; (iii) If the indemnifying party, within a reasonable time after notice of any such claim, fails to defend the indemnified party against which such claim has been asserted, the indemnified party shall (upon reasonable prior written notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party, at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claim at any time prior to settlement, compromise or final determination thereof; (iv) If, in the reasonable opinion of the indemnified party's legal counsel, a conflict of interest with respect to any claim exists between the indemnified party against which a claim has been asserted and the indemnifying party, then such indemnified party shall have the right to retain its own counsel with respect to such claim; provided that the reasonable fees and expenses of such counsel shall be at the expense of the Indemnitee unless indemnified party; and (iv) Anything in this Section 9 to the contrary notwithstanding, (a) if there is a reasonable probability that a claim will materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such claim; provided, however, that if such claim is settled without the indemnifying party's prior written consent, the indemnified party shall be deemed to have waived all rights against the indemnifying party for money damages arising out of such claim; and (b) the Indemnitor has agreed to pay such fees and expensesindemnifying party shall not, (ii) without the Indemnitor shall have failed promptly to assume prior written consent of the defense of such actionindemnified party, proceeding settle or investigation and employ counsel reasonably satisfactory compromise any claim or consent to the Indemnitee, entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or (iii) in the reasonable judgment of the Indemnitee there may be one or more defenses available plaintiff to the Indemnitee which are not available to the Indemnitor indemnified party a release from all liability with respect to such actionclaim. (vi) No claim for indemnification made by any member of the Buyer Group under clause (ii) through clause (v) of Section 9.1(a) shall be valid unless notice thereof is duly given to the Shareholders within two years after the Closing Date; provided, claimhowever, or proceeding, in which case that the Indemnitor foregoing shall not have apply to a breach by the right to assume Shareholders or the defense of such action, proceeding or investigation on behalf Company of the Indemnitee. The Indemnitor shall not be liable for the settlement by the Indemnitee of any actionrepresentations and warranties provided in Sections 2.3, proceeding or investigation effected without its consent, which consent shall not be unreasonably withheld. The Indemnitor shall not enter into any settlement in any action, suit or proceeding to which the Indemnitee is a party, unless such settlement includes a general release of the Indemnitee with no payment by the Indemnitee of consideration2.4 and 2.5.

Indemnification Conditions. Promptly after receipt by Network-1 or FalconStor TIS of notice of any claim that may affect the Licensed Product or the commencement of any action, proceeding, or investigation in respect of which indemnity or reimbursement may be sought as provided above, such party (the "Indemnitee") shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee to notify the Indemnitor with respect to a particular action, proceeding or investigation shall not relieve the Indemnitor from any obligation or liability (i) which it may have pursuant to this Agreement if the Indemnitor is not substantially prejudiced by the failure to notify or (ii) which it may have otherwise than pursuant to this Agreement. The Indemnitor shall promptly assume the defense of the Indemnitee with counsel reasonably satisfactory to the Indemnitee, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnitor. The Indemnitee will cooperate with the Indemnitor in the defense of any action, proceeding or investigation for which the Indemnitor assumes the defense. Notwithstanding the foregoing, the Indemnitee shall have the right to employ separate counsel in any action, proceeding, or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless (i) the Indemnitor has agreed to pay such fees and expenses, (ii) the Indemnitor shall have failed promptly to assume the defense of such action, proceeding or investigation and employ counsel reasonably satisfactory to the Indemnitee, or (iii) in the reasonable judgment of the Indemnitee there may be one or more defenses available to the Indemnitee which are not available to the Indemnitor with respect to such action, claim, or proceeding, in which case the Indemnitor shall not have the right to assume the defense of such action, proceeding or investigation on behalf of the Indemnitee. The Indemnitor shall not be liable for the settlement by the Indemnitee of any action, proceeding or investigation effected without its consent, which consent shall not be unreasonably withheld. The Indemnitor shall not enter into any settlement in any action, suit or proceeding to which the Indemnitee is a party, unless such settlement includes a general release of the Indemnitee with no payment by the Indemnitee of consideration.

Indemnification Conditions. Promptly Each party entitled to indemnification under this Article 6 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after receipt by Network-1 or FalconStor of such Indemnified Party has notice of any claim that may affect claim, suit or proceeding or any alleged claim, suit or proceeding, and shall permit the Licensed Product or Indemnifying Party to assume the commencement defense of any actionsuch claim or any litigation resulting therefrom; provided, proceedingthat: (a) counsel for the Indemnifying Party, who shall conduct the defense of such claim or investigation in respect of which indemnity or reimbursement may litigation, shall be sought as provided above, such party approved by the Indemnified Party (the "Indemnitee"whose approval shall not be unreasonably withheld); and (b) shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee any Indemnified Party to notify the Indemnitor with respect to a particular action, proceeding or investigation give notice as provided herein shall not relieve the Indemnitor from any obligation Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party’s ability to defend against such claim or liability (i) which it may litigation is impaired as a result of such failure to give notice. The Indemnified Party shall have pursuant the right to this Agreement participate in such defense at such party’s expense; provided, however, that the Indemnifying Party shall pay such expense of one counsel if the Indemnitor is not substantially prejudiced representation of such Indemnified Party by the failure counsel retained by the Indemnifying Party would be inappropriate due to notify actual or (ii) which it may have otherwise than pursuant to this Agreement. The Indemnitor shall promptly assume potential differing interests between the defense of the Indemnitee with counsel reasonably satisfactory to the Indemnitee, Indemnified Party and the fees and expenses of any other party represented by such counsel shall be at the sole cost and expense of the Indemnitorin such proceeding. The Indemnitee will cooperate with the Indemnitor No Indemnifying Party in the defense of any actionsuch claim or litigation shall consent, proceeding except with the written consent of each Indemnified Party, to entry of any judgment or investigation for which enter into any settlement that does not include as an unconditional term thereof the Indemnitor assumes giving by the defense. Notwithstanding the foregoing, the Indemnitee shall have the right claimant or plaintiff to employ separate counsel such Indemnified Party of a release from all liability in any action, proceeding, or investigation and to participate in the defense thereof, but the fees and expenses respect of such counsel claim or litigation, and no Indemnified Party shall consent to entry of any judgment or settle such claim or litigation without the prior written consent of the Indemnifying Party. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be at the expense of the Indemnitee unless (i) the Indemnitor has agreed to pay such fees and expenses, (ii) the Indemnitor shall have failed promptly to assume reasonably required in connection with the defense of such action, proceeding or investigation claim and employ counsel reasonably satisfactory to the Indemnitee, or (iii) in the reasonable judgment of the Indemnitee there may be one or more defenses available to the Indemnitee which are not available to the Indemnitor with respect to such action, claim, or proceeding, in which case the Indemnitor shall not have the right to assume the defense of such action, proceeding or investigation on behalf of the Indemnitee. The Indemnitor shall not be liable for the settlement by the Indemnitee of any action, proceeding or investigation effected without its consent, which consent shall not be unreasonably withheld. The Indemnitor shall not enter into any settlement in any action, suit or proceeding to which the Indemnitee is a party, unless such settlement includes a general release of the Indemnitee with no payment by the Indemnitee of considerationlitigation resulting therefrom.

Indemnification Conditions. Promptly after receipt by Network-1 or FalconStor of (a) The rights to indemnification set forth in Sections 2.13(d), 9.1 and 9.2 shall be subject to the following conditions: (i) the indemnified party giving the indemnifying party prompt written notice of any claim that may affect the Licensed Product or the commencement of any actionclaim, suit, proceeding, demand or investigation other action asserted; provided, that failure to give such notice shall not abrogate or diminish the indemnifying party's obligation if such failure does not (in respect the reasonable judgment of which indemnity or reimbursement may be sought as provided abovethe indemnifying party) prejudice the indemnifying party's ability to defend such claim, such party and (the "Indemnitee"ii) shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee to notify the Indemnitor with respect to a particular actionthird party claims, proceeding or investigation shall not relieve the Indemnitor from any obligation or liability (i) which it may have pursuant indemnified party giving the indemnifying party requisite authority to this Agreement if the Indemnitor is not substantially prejudiced by the failure to notify or (ii) which it may have otherwise than pursuant to this Agreement. The Indemnitor shall promptly assume control the defense and full cooperation in the defense. (b) So long as such participation does not, in the reasonable opinion of the Indemnitee indemnifying party, interfere with the defense thereof, the indemnified party shall have the right to participate in the investigation and defense of third party claims, with separate counsel chosen by such indemnified party that is reasonably satisfactory acceptable to the Indemnitee, and indemnifying party. In any such event the fees and expenses of such counsel shall be at paid by the sole cost and expense of the Indemnitor. The Indemnitee will cooperate with the Indemnitor in the defense of any action, proceeding or investigation for which the Indemnitor assumes the defense. Notwithstanding the foregoing, the Indemnitee shall have the right to employ separate counsel in any action, proceeding, or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnitee indemnified party unless (i) the Indemnitor has agreed to pay such fees and expenses, (ii) the Indemnitor indemnifying party shall have failed promptly to assume the defense of any such action, proceeding or investigation and employ counsel reasonably satisfactory to the Indemnitee, claim or (iiiii) in the reasonable judgment of the Indemnitee there may be one or more defenses available to indemnified party, a conflict of interest would exist between the Indemnitee which are not available to indemnified party and the Indemnitor with respect to such action, claim, or proceeding, indemnifying party (in which case case, if such indemnified party notifies the Indemnitor indemnifying party that such indemnified party elects to employ separate counsel at the indemnifying party's expense, the indemnifying party shall not have the right to assume the defense of such action, proceeding or investigation on behalf of the Indemniteesuch indemnified party). The Indemnitor indemnifying party shall not, without the prior written consent of the indemnified party, settle or compromise any action or consent to the entering of any judgment which does not be liable for include as an unconditional term thereof the settlement delivery by the Indemnitee claimant or plaintiff of a duly executed written release of such indemnified party from all liability in respect of any action, proceeding or investigation effected without its consentsuch claim, which consent release shall not be unreasonably withheld. The Indemnitor shall not enter into satisfactory in form and substance to such indemnified party, or settle or compromise any settlement action in any actionmatter that, suit or proceeding to which in the Indemnitee is a reasonable judgment of such indemnified party, unless may materially and adversely affect such settlement includes a general release indemnified party. (c) Purchaser shall first exercise any rights it may have to proceed under the Escrow Agreement prior to exercising any right of set off it may have against the Indemnitee with no payment by the Indemnitee of considerationAdditional Consideration, to satisfy claims hereunder.

Indemnification Conditions. Promptly after receipt by Network-1 or FalconStor of The Fund’s obligations under Section 15(a) above are conditioned upon the following: (1) The Fund’s receiving prompt written notice of any claim that may affect the Licensed Product each such claim, action or the commencement of any action, proceeding, or investigation in respect of which indemnity or reimbursement may be sought as provided above, such party proceeding (the "Indemnitee") shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee to notify the Indemnitor with respect to a particular action, proceeding or investigation do so shall not relieve the Indemnitor Fund of any liability hereunder except to the extent the Fund has been materially prejudiced therefrom). (2) The Fund receiving reasonable cooperation from any obligation or liability the Gold Delivery Provider Indemnified Party. (i3) which it may have pursuant Subject to this Agreement if the Indemnitor is not substantially prejudiced by the failure to notify or (iiprovisions of Section 15(b)(4) which it may have otherwise than pursuant to of this Agreement. The Indemnitor , the Fund shall promptly assume have the right to control and direct the investigation, defense and settlement of each such claim; provided however, that the Indemnitee Fund will not accept any settlement which does not provide the Gold Delivery Provider Indemnified Party with a complete release or imposes liability not covered by these indemnifications or places restrictions on the Gold Delivery Provider Indemnified Party without the Gold Delivery Provider Indemnified Party’s prior written consent, which consent will not be unreasonably withheld or delayed. (4) If any indemnified claim shall be brought or asserted against a Gold Delivery Provider Indemnified Party and it shall have notified the Fund thereof, the Fund shall retain counsel reasonably satisfactory to the Indemnitee, Gold Delivery Provider Indemnified Party to represent the Gold Delivery Provider Indemnified Party and any others entitled to indemnification pursuant to this Section 15 that the Fund may designate in any proceeding for such indemnified claim and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnitorrelated to such proceeding, as incurred. The Indemnitee will cooperate with the Indemnitor in the defense of In any actionsuch proceeding, proceeding or investigation for which the Indemnitor assumes the defense. Notwithstanding the foregoing, the Indemnitee any Gold Delivery Provider Indemnified Party shall have the right to employ separate counsel in any action, proceeding, or investigation and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless such Gold Delivery Provider Indemnified Party unless: (iA) the Indemnitor has Fund and the Gold Delivery Provider Indemnified Party shall have mutually agreed to pay such fees and expenses, the contrary; (iiB) the Indemnitor shall have Fund has failed promptly within a reasonable time to assume the defense of such action, proceeding or investigation and employ retain counsel reasonably satisfactory to the Indemnitee, Gold Delivery Provider Indemnified Party; or (iiiC) the named parties in any such proceeding (including any impleaded parties) include both the reasonable judgment Fund and the Gold Delivery Provider Indemnified Party and representation of the Indemnitee there may be one or more defenses available to the Indemnitee which are not available to the Indemnitor with respect to such action, claim, or proceeding, in which case the Indemnitor shall not have the right to assume the defense of such action, proceeding or investigation on behalf of the Indemnitee. The Indemnitor shall not be liable for the settlement both parties by the Indemnitee same counsel would be inappropriate due to actual or potential conflicts of any action, proceeding or investigation effected without its consent, which consent shall not be unreasonably withheld. The Indemnitor shall not enter into any settlement in any action, suit or proceeding to which the Indemnitee is a party, unless such settlement includes a general release of the Indemnitee with no payment by the Indemnitee of considerationinterests between them.

Indemnification Conditions. Promptly after receipt by TIS or Network-1 or FalconStor of notice of any claim that may affect the Licensed Product or the commencement of any action, proceeding, or investigation in respect of which indemnity or reimbursement may be sought as provided above, such party (the "Indemnitee") shall notify the party from whom indemnification is claimed (the "Indemnitor"), but the failure of such Indemnitee to notify the Indemnitor with respect to a particular action, proceeding or investigation shall not relieve the Indemnitor from any obligation or liability (i) which it may have pursuant to this Agreement if the Indemnitor is not substantially prejudiced by the failure to notify or (ii) which it may have otherwise than pursuant to this Agreement. The Indemnitor shall promptly assume the defense of the Indemnitee with counsel reasonably satisfactory to the Indemnitee, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnitor. The Indemnitee will cooperate with the Indemnitor in the defense of any action, proceeding or investigation for which the Indemnitor assumes the defense. Notwithstanding the foregoing, the Indemnitee shall have the right to employ separate counsel in any action, proceeding, or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless (i) the Indemnitor has agreed to pay such fees and expenses, (ii) the Indemnitor shall have failed promptly to assume the defense of such action, proceeding or investigation and employ counsel reasonably satisfactory to the Indemnitee, or (iii) in the reasonable judgment of the Indemnitee there may be one or more defenses available to the Indemnitee which are not available to the Indemnitor with respect to such action, claim, or proceeding, in which case the Indemnitor shall not have the right to assume the defense of such action, proceeding or investigation on behalf of the Indemnitee. The Indemnitor shall not be liable for the settlement by the Indemnitee of any action, proceeding or investigation effected without its consent, which consent shall not be unreasonably withheld. The Indemnitor shall not enter into any settlement in any action, suit or proceeding to which the Indemnitee is a party, unless such settlement includes a general release of the Indemnitee with no payment by the Indemnitee of consideration.