Indemnification for Third Party Claims. (a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents. (b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents. (c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that: (i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party; (ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and (iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld. (d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement. (e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 4 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Indemnification for Third Party Claims.
(a) Seller From and after the Distribution Date, ADP, on the one hand, and Dealer, on the other hand (as applicable, an “Indemnifying Party”), shall defendindemnify the other Party, indemnify and hold harmless Buyer, its shareholders and Affiliates, the other Party’s Affiliates and their respective directors, officers, directors and employees (each, an “Indemnified Party”), against and agentshold them harmless from any and all liabilities, from losses, damages, claims, costs, expenses, interest, awards, judgments and against all third party Claims penalties (including reasonable fees for outside counsel, accountants and Liabilities for injuryother outside consultants) (collectively, including death, and property damage caused by, arising out of, “Losses”) suffered or incurred by the Indemnified Party in connection with the performance by any Project Party a third party claim against such Indemnified Party, which Losses result from (1) a breach of the Transaction Documents to the extent any of such Claims or Liabilities were caused this Agreement by the negligenceIndemnifying Party, gross or (2) the negligence or willful misconduct of Sellerthe Indemnifying Party in its performance of its obligations hereunder; provided, however, that the ContractorIndemnifying Party shall not be deemed to have breached the Agreement, or been negligent or to have engaged in willful misconduct, to the extent that Losses arise as a result of information provided by or on behalf of the Indemnified Party to the Indemnifying Party or any Subcontractoractions taken or omitted to be taken by the Indemnifying Party upon the written direction or instruction of the Indemnified Party. For avoidance of doubt, this Article V applies solely to the specific matters and its respective employees activities covered by this Agreement (and not to matters specifically covered by the Separation Agreement or agentsthe Ancillary Agreements).
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance The amount of the Transaction Documents to the extent any of such Claims or Liabilities were caused Losses payable under Section 5.1(a) by the negligence, gross negligence or willful misconduct Indemnifying Party shall be net of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after any amounts actually recovered by the Indemnified Party has actual knowledge of from any Claim as other Person alleged to which indemnity may be sought hereunderresponsible therefor. If the Indemnified Party receives any amounts from any other Person alleged to be responsible for any Losses subsequent to an indemnification payment by the Indemnifying Party, and then the Indemnified Party shall permit promptly reimburse the Indemnifying Party (at for the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for amount actually paid by the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) Party in respect of such indemnification payment up to the amount received by the Indemnified Party may participate in such defense at its own expenseParty, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission net of any expenses incurred by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that in collecting such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheldamount.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 2 contracts
Samples: Transition Services Agreement (CDK Global, Inc.), Transition Services Agreement (Dealer Services Holdings LLC)
Indemnification for Third Party Claims.
(a) Seller From and after the Distribution Date, ADP, on the one hand, and Dealer, on the other hand (as applicable, an “Indemnifying Party”), shall defendindemnify the other Party, indemnify and hold harmless Buyer, its shareholders and Affiliates, the other Party’s Affiliates and their respective directors, officers, directors and employees (each, an “Indemnified Party”), against and agentshold them harmless from any and all liabilities, from losses, damages, claims, costs, expenses, interest, awards, judgments and against all third party Claims penalties (including reasonable fees for outside counsel, accountants and Liabilities for injuryother outside consultants) (collectively, including death, and property damage caused by, arising out of, “Losses”) suffered or incurred by the Indemnified Party in connection with the performance by any Project Party of the Transaction Documents a third party claim against such Indemnified Party, to the extent any such Losses result from (1) an actual or alleged breach of such Claims or Liabilities were caused this Agreement by the negligenceIndemnifying Party, (2) any actual or alleged infringement, violation or misappropriation of the intellectual property rights of any third person by the Indemnifying Party, or (3) the gross negligence or willful misconduct of Sellerthe Indemnifying Party in the performance of its obligations hereunder, (4) death, personal injury, or bodily injury negligently or intentionally caused by the ContractorIndemnifying Party, or (5) damage to tangible/physical property caused by the grossly negligent or willful misconduct of the Indemnifying Party; provided, however, that the Indemnifying Party shall not be deemed to have breached the Agreement, or been grossly negligent or to have engaged in willful misconduct, to the extent that Losses arise as a result of information provided by or on behalf of the Indemnified Party to the Indemnifying Party or any Subcontractoractions taken or omitted to be taken by the Indemnifying Party upon the written direction or instruction of the Indemnified Party. For avoidance of doubt, this Article VI applies solely to the specific matters and activities covered by this Agreement (and not to matters specifically covered by the Separation Agreement or the other Ancillary Agreements). The infringement indemnity set forth in subsection (1) above will not apply and ADP will not be liable for any damages assessed in any cause of action to the extent resulting from (i) any change, or enhancement in Services or Data Center Technology made by Dealer, and its respective employees Service Recipient or agentsany third party, (ii) Dealer’s use of the Services or Dealer Technology except as permitted under this Agreement or in combination with any hardware, software or other materials not expressly authorized by ADP, or (iii) ADP’s use in connection with the Services of Dealer Information.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance The amount of the Transaction Documents to the extent any of such Claims or Liabilities were caused Losses payable under Section 6.1(a) by the negligence, gross negligence or willful misconduct Indemnifying Party shall be net of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after any amounts actually recovered by the Indemnified Party has actual knowledge of from any Claim as other Person alleged to which indemnity may be sought hereunderresponsible therefor. If the Indemnified Party receives any amounts from any other Person alleged to be responsible for any Losses subsequent to an indemnification payment by the Indemnifying Party, and then the Indemnified Party shall permit promptly reimburse the Indemnifying Party (at for the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for amount actually paid by the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) Party in respect of such indemnification payment up to the amount received by the Indemnified Party may participate in such defense at its own expenseParty, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission net of any expenses incurred by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that in collecting such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheldamount.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 2 contracts
Samples: Data Center Services Agreement (CDK Global, Inc.), Data Center Services Agreement (CDK Global Holdings, LLC)
Indemnification for Third Party Claims.
Subject to the limitations of liability set forth herein, each party (athe “Indemnifying Party”) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, the other party and their respective equity holders, directors, officers, employees managers, employees, and agents, agents (the “Indemnitees”) from and against any and all third party Claims claims (other than those covered by the warranties set forth in Section 9 above), resulting in actual losses, damages, suits, fees, judgments, costs, and Liabilities for injuryexpenses (collectively referred as “Claims”), including deathreasonable attorneys’ fees incurred in response to such Claims, and property damage caused by, that the Indemnitees may suffer or incur arising out of, of or in connection with with: (a) the performance by Indemnifying Party’s negligence, willful misconduct, or violation of any Project Party law or regulation; (B) the Indemnifying Party’s handling, possession, use, exposure to or disposal of the Transaction Documents products or material produced therefrom and any packaging in the Indemnifying Party’s possession or control, including Claims related to environmental contamination or violation of any environmental law or regulation, (c) any personal injury (including death) or damage to property resulting from the Indemnifying Party’s acts or omissions, except to the extent that any of such Claims or Liabilities were are caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees Indemnitee. Exacto shall be deemed to have possession or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injurycontrol of the products, including deathany packaging, prior to transfer of title to Customer and property damage caused byCustomer shall be deemed to have possession or control of the products including any packaging, arising out for all periods of time after title to products, including any packaging, passes to Customer. The parties shall cooperate reasonably with each other and counsel in the compromise or settlement of, or in connection with the performance of the Transaction Documents to the extent defense against, any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 2 contracts
Samples: Terms and Conditions of Sale, Terms and Conditions of Sale
Indemnification for Third Party Claims.
(a) Seller A party (the "INDEMNIFIED PARTY") wishing to claim indemnification under Section 8.2 upon learning of any claim, action, suit, proceeding or investigation as to which it wishes to be indemnified pursuant to Section 8.2, shall defendnotify the party or parties obligated to provide indemnification (the "INDEMNIFYING PARTY") pursuant to Section 8.2 promptly; provided, indemnify and hold harmless Buyerhowever, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with that no failure so to notify the performance by any Project Indemnifying Party will relieve the Indemnifying Party of any obligation to indemnify the Transaction Documents Indemnified Party unless and except to the extent any such failure so to notify prejudices the position of the Indemnifying Party in responding to such Claims claim action, suit or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agentsproceeding.
(b) Buyer shall defendIf the facts giving rise to any indemnification provided for in Section 8.2 involve any actual or threatened claim or demand by any person other than the Indemnified Party, indemnify and hold harmless Seller and its managersthe Indemnified Party shall, officersby written notice given to the Indemnifying Party within twenty (20) days after giving notice of such claim pursuant to Section 8.3(a), employees and agents, from and against all to either (i) in the case of certain third party Claims and Liabilities for injuryclaims as set forth in Section 8.3(e), including death, and property damage caused by, arising out of, or in connection assume the obligation of negotiating a settlement of such claim with the performance third party or (ii) tender to the Indemnifying Party the defense or prosecution of such claim and any litigation resulting therefrom and through counsel of the Transaction Documents Indemnifying Party's own choosing, subject to the extent any terms of such Claims Section 8.3 (c) or Liabilities were caused by 8.3(d), as the negligence, gross negligence or willful misconduct of Buyer, its employees or agentscase may be.
(c) Either Party seeking indemnification under this Agreement (If the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after defense or prosecution of a third party claim is tendered by the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunderthe Indemnifying Party pursuant to Section 8.3(b)(ii) and is subsequently assumed by the Indemnifying Party, and the Indemnified Party shall permit be entitled, at its own expense, to participate in such settlement or defense through counsel chosen by the Indemnified Party. If the Indemnifying Party assumes the defense or prosecution of such claim or litigation, it will take all steps reasonably necessary in the defense, prosecution or settlement of such claim or litigation and will hold the Indemnified Party harmless from and against all Damages caused by or arising out of any settlement thereof approved by the Indemnified Party (which approval shall not be unreasonably withheld) or any judgment in connection therewith (other than the Indemnified Party's expenses of participation in such defense, prosecution or settlement). The Indemnifying Party may not, in the defense or prosecution of any suit, claim, action or proceeding the defense of which the Indemnifying Party has assumed, except with the written consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement (i) which does not include as an unconditional term thereof the giving to the Indemnified Party by the third party of a full and final release from all liability in respect of such suit, claim, action or proceeding or (ii) which shall limit, restrict or otherwise affect the right of the Indemnified party to carry on or conduct its business (then or in the future), or require any payment to be made by the Indemnified Party or limit, restrict, make more expensive or less profitable or otherwise adversely affect the manner in which the Indemnified Party carries on or conducts its business (then or in the future).
(d) If the Indemnifying Party does not assume the defense or prosecution of any claim or litigation tendered to it pursuant to Section 8.3(b)(ii), the Indemnified Party may defend or prosecute such claim or litigation in such manner as it may deem appropriate (in which case legal expenses of the Indemnified Party's counsel shall be at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) and the Indemnified Party may participate in settle such defense at its own expenseclaim or litigation after giving written notice thereof (and reasonable opportunity to respond) to the Indemnifying Party, except on such terms as the Indemnified Party may deem appropriate; and the Indemnifying Party shall will promptly reimburse the Indemnified Party for its participation in the Damages incurred as a result of such defense settlement for which the Indemnified Party is entitled to the extent that be indemnified. If no such settlement of such claim or litigation is made, the Indemnifying Party requests will promptly reimburse the Indemnified Party for the Damages arising out of any judgment rendered with respect to participate in its own defense; and
(iii) the omission by such claim or such litigation for which the Indemnified Party to give notice as provided herein shall has not relieve been so reimbursed pursuant thereto; provided, however, that if such judgment is appealable and the Indemnified Party notifies the Indemnifying Party of its indemnification obligations hereunder except intention not to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoingappeal, the Indemnifying Party may not settle any Claim related prosecute such appeal, at its sole cost and expense and subject to the indemnity being provided hereunder without the consent of obligations set forth herein. Any expenses for which the Indemnified Party, such consent not Party is entitled to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims reimbursement hereunder shall be resolved on paid by the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreementIndemnifying Party as incurred.
(e) Nothing With respect to third party claims or demands which relate to or are likely to affect the Indemnified Party's business (as determined in the reasonable judgment of the Indemnified Party), including, without limitation, the Indemnified Party's relationships with customers, the Indemnified Party shall have the right to make the election referred to in Section 8.3(b)(i). If such election is made, the Indemnified Party may employ counsel at its own expense; provided, however, that no settlement of any such claim with third party claimants or the costs incurred in reaching such settlement shall be determinative of the liability of the Indemnifying party to the Indemnified Party pursuant to this Section 26.1 is intended 8 unless the Indemnifying Party has consented in advance to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconductsettlement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ilog Sa), Asset Purchase Agreement (Ilog Sa)
Indemnification for Third Party Claims.
(a) Seller shall defendTo the extent permitted by law, the Corporation will indemnify and hold harmless Buyereach Holder, its shareholders any underwriter (as defined in the Act) for such Holder and Affiliateseach person, if any, who controls such Holder or such Holder's securities or such underwriter within the meaning of the Act or the 1934 Act, and their respective directorseach officer, officersdirector, employees agent, employee and agentspartner of the foregoing against any losses, from and against all third party Claims and Liabilities for injuryclaims, damages or liabilities (joint or several) to which they may become subject insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including deathany preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto or any other document prepared by the Corporation incident to such registration, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Corporation of the Act, the 1934 Act, any state securities law or any rule or regulation promulgated under the Act, or the 1934 Act or any state securities law, and property damage caused by, arising out of, the Corporation will pay to each such indemnified person any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the performance by indemnity agreement contained in this Section 6 shall not apply to amounts paid in settlement of any Project Party such loss, claim, damage, liability or action if such settlement is effected without the consent of the Transaction Documents Corporation (which consent shall not be unreasonably withheld), nor shall the Corporation be liable in any such case for any such loss, claim, damage, liability or action to the extent any that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with information furnished by such Claims Holder, underwriter or Liabilities were caused by the negligence, gross negligence controlling person in writing expressly for use in such registration or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agentsfor use in direct connection with such registration.
(b) Buyer shall defendTo the extent permitted by law, each selling Holder will indemnify and hold harmless Seller the Corporation, each of its directors, each of its officers each person, if any, who controls the Corporation within the meaning of the Act, any underwriter and its managersany controlling person of any such underwriter, officersagainst any losses, employees claims, damages or liabilities (joint or several) to which any of the foregoing persons may become subject insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and agents, from only to the extent) that such Violation occurs in reliance upon and against all third party Claims and Liabilities in conformity with information furnished in writing by such Holder expressly for injury, including death, and property damage caused by, arising out of, or use in connection with such registration, and each such Holder will pay to each such indemnified party any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the performance of the Transaction Documents indemnity agreement contained in this Section 6 shall not apply to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge amounts paid in settlement of any Claim as to which indemnity may be sought hereundersuch loss, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim claim, damage, liability or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of action if such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party settlement is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder effected without the consent of the Indemnified PartyHolder, such which consent shall not to be unreasonably withheld.
(dc) With regard Promptly after receipt by an indemnified party under this Subsection (l) of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 6 deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of receipt of notice of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 (to the extent of such prejudice), but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Sellerindemnified party otherwise than under this Section 6. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence orNo indemnifying party, in the absence defense of any claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. 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 reasonably required in connection with defense of such determination, by mutual agreementclaim and litigation resulting therefrom.
(ed) Nothing If the indemnification provided for in this Section 26.1 6 is intended to allow any Indemnified Party held by a court of competent jurisdiction to be unavailable to an indemnified from party with respect to any loss, liability, claim, damage or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and against any third of the indemnified party Claims and Liabilities caused by, arising out of, or on the other in connection with the performance statements or omissions that resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations. The relative fault of this Agreement the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the extent any of indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such Claims statement or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconductomission.
Appears in 2 contracts
Samples: Note and Warrant Purchase Agreement (Take to Auction Com Inc), Note and Warrant Purchase Agreement (Take to Auction Com Inc)
Indemnification for Third Party Claims. From and after the Distribution Date, iGATE shall indemnify, defend and hold harmless the Mastech Indemnitees and Mastech shall indemnify, defend and hold harmless the iGATE Indemnitees from and against any and all Indemnifiable Losses arising out of, by reason of, in connection with or as a result of a Third Party Claim against the Indemnified Party if and to the extent any such Indemnifiable Loss is attributable to the Indemnifying Party.
(a) Seller If an Indemnified Party shall defendreceive notice or otherwise learn of any Third Party Claim, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project respect to which an Indemnifying Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required may be obligated to provide indemnification hereunder (the “Indemnifying Party”) promptly after the to such Indemnified Party has actual knowledge pursuant to Section 7.2 of any Claim as to which indemnity may be sought hereunderthis Services Agreement, and the such Indemnified Party shall permit the give such Indemnifying Party prompt written notice thereof and, in any event, within ten (at 10) Business Days after such Indemnified Party received notice of such Third Party Claim. Any such notice shall describe the expense of Third Party Claim in reasonable detail. Notwithstanding the Indemnifying Party) to assume foregoing, the defense failure of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party or other Person to give notice as provided herein in this Section 7.2(a) shall not relieve the related Indemnifying Party of its indemnification obligations hereunder under this Article 7, except to the extent that such omission results Indemnifying Party is actually materially prejudiced by such failure to give notice (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(b) An Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the applicable Indemnitees, if it gives notice of its intention to do so to the applicable Indemnitees within thirty (30) days of the receipt of such notice from such Indemnitees. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a failure of actual notice Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise or settlement thereof, at its own expense and, in any event, shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent Information, materials and information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. In the event of a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s), or in the event that any Third Party Claim seeks equitable relief which would restrict or limit the future conduct of the Indemnitee’s business or operations, such Indemnitee(s) shall be entitled to retain, at the Indemnifying Party’s Expense, separate counsel as required by the applicable rules of professional conduct and to participate in (but not control) the defense, compromise, or settlement of that portion of the Third Party Claim that seeks equitable relief with respect to the Indemnitee(s).
(c) If an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnitee of its election as provided in Section 7.2(b), such Indemnitee may defend such Third Party Claim at the cost and expense of the Indemnifying Party. If the Indemnitee is damaged as a result of conducting the defense against any such failure to give notice. Notwithstanding the foregoingThird Party Claim, the Indemnifying Party may not settle any Claim related shall cooperate with the Indemnitee in such defense and make available to the indemnity being provided hereunder Indemnitee all witnesses, pertinent Information, material and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee.
(d) Unless the Indemnifying Party has failed to assume the defense of the Third Party Claim in accordance with the terms of this Services Agreement, no Indemnitee may settle or compromise any Third Party Claim without the consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld or delayed. If an Indemnifying Party has failed to assume the defense of the Third Party Claim within the time period specified in Section 7.2(b), it shall not be a defense to any obligation to pay any amount in respect of such Third Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not approve of the quality or manner of the defense thereof or that such Third Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(e) In the case of a Third Party Claim, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement of the Third Party Claim without the consent (not to be unreasonably withheld) of the Indemnitee if the effect thereof is to permit any injunction, declaratory judgment, other order or other nonmonetary relief to be entered, directly or indirectly, against any Indemnitee.
(df) With regard to any Claim Absent fraud or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyerwillful misconduct by an Indemnifying Party, the Parties agree to jointly defend indemnification provisions of this Article 7 shall be the sole and exclusive remedy of an Indemnitee for any Claim monetary or compensatory damages or losses resulting from any breach of this Services Agreement, and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreementforegoing other than under this Article 7 against any Indemnifying Party.
(eg) Nothing Any Indemnitee that has made a claim for indemnification pursuant to this Article 7 shall use commercially reasonable efforts to mitigate any Indemnifiable Losses in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconductrespect thereof.
Appears in 2 contracts
Samples: Transition Services Agreement (Mastech Holdings, Inc.), Transition Services Agreement (Mastech Holdings, Inc.)
Indemnification for Third Party Claims.
12.2.1 Each Beneficiary (a“Indemnitor”) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, each other Beneficiary (“Indemnitee”) from and against all third party Claims loss, damage, liability, cost, expense, or injury (including reasonable attorneys’ fees and Liabilities for injuryexpenses) (individually a “Loss” and collectively, “Losses”) incurred by such Indemnitee, its employees, or Affiliate Entities, resulting from any claim, complaint, proceeding or cause of action brought by a Third Party, including deathIHI JU (“Third Party Claims”) arising from (i) the material breach of any representation, and property damage caused bywarranty or covenant made by the Indemnitor hereunder, arising out of, (ii) gross negligence or in connection with wilful misconduct on the performance by any Project Party part of the Transaction Documents Indemnitor in performing its obligations under this Consortium Agreement, or, subject to Clause 12.1 of this Consortium Agreement, (iii) infringement of Third Party Intellectual Property rights by such Indemnitor, its employees, Sub- Contractors, Associated Partners (excluding Case A Associated Partners that sign this Consortium Agreement), Affiliated Entities or its agents; provided in each case that: − except in the case of wilful misconduct [OPTIONAL:, gross negligence and breach of confidentiality obligations], the foregoing obligation to indemnify shall not extend to claims for indirect, special or consequential loss or damage, including but not limited to loss of profit, revenue or contracts; and − [OPTIONAL: the total limit of liability of any Indemnitor to any Indemnitee in respect of any one claim or series of connected claims, shall not exceed the higher of (i) [1,000,000] euros; and (ii) twice the financial value (of the Grant or of the in-kind contribution, as the case may be,) corresponding to that Indemnitor’s Action Share; and] − an Indemnitor shall not be obligated to indemnify an Indemnitee for any Losses to the extent such Losses arise as a result of (i) the material breach of any of such Claims representation, warranty or Liabilities were caused covenant made by the negligence, Indemnitee under this Consortium Agreement or (ii) any gross negligence or willful wilful misconduct on the part of Seller, any Indemnitee.
12.2.2 The Indemnitee shall immediately advise the Contractor, Indemnitor of any Subcontractor, such Loss or Third Party Claim in writing. The Indemnitor shall have the right to select defence counsel and to direct the defence or settlement of any claim which is the subject of this indemnity. The Indemnitee shall reasonably co-operate with the Indemnitor and its respective employees or agents.
(b) Buyer shall defend, indemnify legal representatives in the investigation and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge defence of any Claim as to which indemnity such claim. The Indemnitee may be sought hereunderobtain representation by separate legal counsel, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except . The Indemnitee shall refrain from making any admission of liability or any attempt to settle the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder claim without the consent of the Indemnified Party, such consent not to be unreasonably withheldIndemnitor’s prior written consent.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Samples: Consortium Agreement
Indemnification for Third Party Claims.
Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding by any Person who is not a party to this Agreement (collectively, an "Action") which is subject to indemnification hereunder, such party (the "Indemnified Party") shall give prompt written notice of such Action to the party from whom indemnification is claimed (the "Indemnifying Party"); provided, however, that failure to give such notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. At the sole expense and liability of the Indemnifying Party and within a reasonable time after the giving of notice of the Action by the Indemnified Party as provided above, the Indemnifying Party will: (a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliatesnotify the Indemnified Party in writing of the Indemnifying Party's intention to assume the defense of the Action, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents retain legal counsel reasonably satisfactory to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge to conduct the defense of the Action. The Indemnified Party and the Indemnifying Party will cooperate in defending, compromising or settling any Claim as to which indemnity Action in any manner that such party reasonably may be sought hereunderrequest, and the Indemnifying Party shall reimburse each Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection therewith; provided, however, that neither an Indemnified Party nor an Indemnifying Party shall permit be required pursuant to this Section 7.3 to disclose any privileged information or any attorney work product. If the Indemnifying Party so assumes the defense of any Action, the Indemnified Party will have the right to employ separate counsel and to participate in (at but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel will be the sole expense of the Indemnified Party. If the Indemnified Party determines in good faith that joint representation is inappropriate based on an actual or likely conflict of interest, the fees and expenses of any separate counsel employed by the Indemnified Party will be the expense of the Indemnifying Party) . No Indemnified Party will settle or compromise any Action for which it is entitled to assume indemnification hereunder without the defense prior written consent of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party, unless the Indemnifying Party who shall conduct has failed, after reasonable notice thereof, to undertake control of the defense Action in the manner provided above in this Section 7.3. No Indemnifying Party will settle or compromise any Action in which any relief other than the payment of such Claim or litigation shall be reasonably satisfactory to the money damages is sought against any Indemnified Party;
(ii) , unless the Indemnified Party may participate consents in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense writing to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein compromise or settlement, which consent shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheldwithheld or delayed.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Epiq Systems Inc)
Indemnification for Third Party Claims. The following procedures shall apply with respect to indemnification for Third Party Claims arising in connection with this Agreement:
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third Promptly after receipt by a party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) of notice of the assertion or the commencement of any Third Party Claim with respect to any matter within the scope of Sections 12.1, 12.2 or 12.3 (as applicable), the Indemnified Party shall give notice Notice thereof to the Party required to provide indemnification hereunder other party (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit thereafter keep the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefromreasonably informed with respect thereto; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expenseprovided, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent however, that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by failure of the Indemnified Party to give notice as provided herein shall the Indemnifying Party such prompt Notice will not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission failure results in a failure of actual notice prejudice to the Indemnifying Party’s defense of such Third Party and Claim. Within fifteen (15) days following receipt of Notice from the Indemnified Party relating to any Third Party Claim, but no later than ten (10) days before the date on which any response to a writ, statement of claim, complaint or summons is due, the Indemnifying Party is damaged as a result shall notify the Indemnified Party in writing that the Indemnifying Party shall assume control of the defense and settlement of such failure Third Party Claim (the “Assumption Notice”).
(b) If the Indemnifying Party delivers the Assumption Notice relating to give noticeany Third Party Claim within the required notice period, and if the Third Party Claim seeks only monetary relief against the Indemnified Party, and for so long as the Indemnifying Party diligently conducts the defense of such Third Party Claim, the Indemnifying Party will be entitled to have sole control over the defense and settlement of such Third Party Claim; provided, however, that the Indemnified Party will be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such Third Party Claim. Notwithstanding Confidential
(c) If the foregoingIndemnifying Party fails or chooses not to assume the defense of any such Third Party Claim within the prescribed period of time, then the Indemnified Party may assume the defense of any such Third Party Claim at the cost and expense of the Indemnifying Party.
(d) The Indemnifying Party may compromise, settle or resolve a Third Party Claim without the Indemnified Party’s Consent if the compromise, settlement or resolution involves only the payment of money by the Indemnifying Party (whether on its own behalf or on behalf of the Indemnified Party) and the Third Party claimant provides the Indemnified Party a release from all liability regarding the Third Party Claim. Otherwise, the Indemnifying Party may not compromise, settle any or resolve the Third Party Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld’s Consent.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Indemnification for Third Party Claims. In the event of a claim by a third party arising in connection with the provision of any of the Services (“Third Party Claim”), the following rules shall apply:
10.2.1 SANOFI shall indemnify CPP and its respective officers, directors, managers, agents, representatives and employees (athe “CPP’s Indemnified Parties”) Seller shall defendagainst, indemnify and hold CPP’s Indemnified Parties harmless Buyerfrom any and all direct claims, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injurylosses or damages, including death, and property damage caused bywithout limitation reasonable attorney’s fees, arising out of, or resulting from, any Third Party Claim asserted against any CPP’s Indemnified Party for any losses or damages as a result of (i) any breach by SANOFI of its representation and warranty as set forth in connection with Section 4.1 or in Section 14.6 hereto, (ii) the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of SellerSANOFI and/or its Affiliates under this Agreement, (iii) SANOFI’s violation of any applicable law or regulations, or (iv) SANOFI’s breach of its obligations under this Agreement, except to the Contractorextent such claims, losses or damages are caused by any Subcontractorevent, action or omission that CPP is obligated to indemnify SANOFI under Subsection 10.2.2..
10.2.2 CPP shall indemnify SANOFI, its Affiliates and its respective officers, directors, managers, agents, representatives and employees or agents.
(bthe “SANOFI’s Indemnified Parties”) Buyer shall defendagainst, indemnify and hold SANOFI’s Indemnified Parties harmless Seller from any and its managersall direct claims, officers, employees and agents, from and against all third party Claims and Liabilities for injurylosses or damages, including death, and property damage caused bywithout limitation reasonable attorney’s fees, arising out of, or in connection with resulting from, any Third Party Claim asserted against any SANOFI’s Indemnified Party for any losses or damages as a result of (i) the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of BuyerCPP and/or its Affiliates under this Agreement, (ii) CPP’s violation of any applicable law or regulations, or (iii) CPP’s breach of its employees obligations under this Agreement; except to the extent such claims, losses or agentsdamages are caused by any event, action or omission that SANOFI is obligated to indemnify CPP under Subsection 10.1.2.
(c) Either 10.2.3 In the event of a Third Party seeking indemnification under this Agreement (Claim, the “Indemnified Party”) Indemnifiable Party shall give notice with reasonable promptness send to the Party required to provide indemnification hereunder indemnifying party (the “Indemnifying Party”) promptly after a written notice specifying the Indemnified Party has actual knowledge nature of any Claim as to which indemnity may be sought hereunder, such claim or demand and the Indemnified amount or estimated amount (which estimate shall not be conclusive of the final amount of such claim and demand) (a “Third Party Claim Notice”). The Indemnifying Party shall permit take such action to avoid, defend, dispute, resist, appeal or compromise such claim as it may determine, after consulting the Indemnifying Indemnifiable Party (and taking into account its reasonable comments and requests. The Indemnifiable Party shall take, at the expense of the Indemnifying Party) ’s expense, all reasonable steps to assume the defense avoid or mitigate any losses, damages or injury in respect of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the which it might be entitled to indemnification. The Indemnifying Party who shall conduct the defense of such the Third Party Claim or litigation shall be in good faith using all the means and defenses reasonably satisfactory available to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the it. The Indemnifying Party shall reimburse further keep the Indemnified Indemnifiable Party for informed of the developments of the underlying claim and its participation defense and shall promptly provide the Indemnifiable Party with all notices, communications and filings (including court papers) in relation thereto. No such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party claim or demand may not settle any Claim related to the indemnity being provided hereunder be settled without the consent of the Indemnified Indemnifiable Party, such which consent shall not to be unreasonably withheldwithheld or delayed.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Samples: Master Development Agreement (Cancer Prevention Pharmaceuticals, Inc.)
Indemnification for Third Party Claims.
(a) Seller Contractor shall defend, indemnify and hold harmless BuyerCompany, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Project Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of SellerContractor, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer Company shall defend, indemnify and hold harmless Seller Contractor and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Project Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of BuyerCompany, its employees or agents.
(c) Either Party seeking indemnification under this Agreement Contract (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller Contractor and BuyerCompany, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer Company and SellerContractor. Any Claim of contribution or indemnification between Buyer Company and Seller Contractor relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 25.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement Contract to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Indemnification for Third Party Claims.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance Promptly after receipt by any Project a Party of the Transaction Documents entitled to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement indemnity (the “Indemnified Party”) shall give of a notice of the assertion of a third-party claim against it for causes attributable to the other Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after ), the Indemnified Party has actual knowledge will, if a claim is to be made against the Indemnifying Party, give written notice to the Indemnifying Party of the assertion of such claim. Without prejudice to the period set by Section 8.04, if notice is not given within ninety (90) days from the date of receipt of a third- party claim, the Indemnifying Party will not be liable to the Indemnified Party. The Indemnified Party must not enter into any Claim as compromise or settlement of the claim without the prior written consent of the Indemnifying Party, which consent must not be unreasonably withheld.
(b) If any claim referred to which indemnity may be sought hereunder, in Section 8.06(a) is brought against an Indemnified Party by means of a Proceeding and the Indemnified Party shall permit gives notice to the Indemnifying Party (at the expense of the commencement of such Proceeding, the Indemnifying PartyParty will be entitled to participate in such Proceeding and to the extent that it wishes (unless (i) the Indemnifying Party is also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) such Proceeding with counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) . After notice from the Indemnifying Party to the Indemnified Party may participate in of its election to assume the defense of such defense at its own expenseProceeding, except the Indemnifying Party shall reimburse will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Article for its participation in such defense any fees of counsel or any other expenses with respect to the extent that the Indemnifying Party requests the Indemnified Party to participate defense of such Proceeding, in its own defense; and
(iii) the omission each case subsequently incurred by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any defense of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconductProceeding other than reasonable costs of investigation.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification for Third Party Claims.
Each Party (a“Indemnitor”) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, each other Party and their respective directors, officers, employees and agents, Affiliated Entities (“Indemnitees”) from and against any and all third party Claims loss, damage, liability, cost, expense, or injury (including reasonable attorneys’ fees and Liabilities expenses) (individually a “Loss” and collectively, ”Losses”) incurred by an Indemnitee resulting from any claim, complaint, investigation, demand, proceeding or cause of action brought by a Third Party (“Third Party Claims”) alleging or arising from (x) the material breach of any representation, warranty or covenant made by the Indemnitor hereunder (y) xxxxx negligent or wilful misconduct on the part of the Indemnitor in performing its obligations under this Agreement, or (z) the development or commercialisation by Indemnitor or any other Party of QHL Compounds or Derivatives or Products or Diagnostics containing such QHL Compounds or Derivatives; provided always that the foregoing obligation to indemnify shall not extend to claims for injuryindirect or consequential loss or damage, including deathbut not limited to loss of profit, revenue or contracts, and property damage caused byprovided, arising out ofhowever, or in connection with the performance by that an Indemnitor shall not be obligated to indemnify an Indemnitee for any Project Party of the Transaction Documents Losses to the extent such Losses arise as a result of (i) the material breach of any of such Claims representation, warranty or Liabilities were caused covenant made by the negligence, Indemnitee under this Agreement or (ii) any gross negligence or willful wilful misconduct on the part of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or Indemnitee. Nothing in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) construed to assume the defense of any Claim or litigation resulting therefrom; provided that:
limit (i) counsel the right of any Party to bring an action for the Indemnifying Party who shall conduct the defense damages against any Third Party, including claims for indirect, special or consequential damages, based on any acts or omissions of such Claim Third Party or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expenseliability of a party for wilful misconduct, except personal injury or death resulting from the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result negligence of such failure to give notice. Notwithstanding the foregoingparty or its employees, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Partyofficers, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyerdirectors, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out ofagents, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconductrepresentatives (as applicable).
Appears in 1 contract
Samples: Contributing Third Party Agreement
Indemnification for Third Party Claims.
(aother than Tax Claims). In order for a party (the "indemnified party") Seller to be entitled to any indemnification provided for under this Agreement (other than indemnification for a Tax Claim under Section 9.01 which shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused bybe governed by Section 9.09) in respect of, arising out ofof or involving a claim or demand made by any Person against the indemnified party (a "Third Party Claim"), or such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within five (5) business days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the performance by any Project Party of defense thereof. If the Transaction Documents indemnifying party assumes such defense, the indemnified party shall have the right to participate in the extent any of such Claims or Liabilities were caused defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the negligenceindemnifying party, gross negligence or willful misconduct it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused counsel employed by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (indemnified party for any period during which the “Indemnified Party”) shall give notice indemnifying party has failed to assume the Party required to provide indemnification hereunder (defense thereof. If the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) indemnifying party so elects to assume the defense of any Claim Third Party Claim, all of the indemnified parties shall cooperate with the indemnifying party in the defense or litigation resulting therefrom; prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided that:
(i) counsel for hereunder. Whether or not the Indemnifying Party who indemnifying party shall conduct have assumed the defense of such Claim or litigation shall be reasonably satisfactory to a Third Party Claim, the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein indemnified party shall not relieve the Indemnifying admit any liability with respect to, or settle, compromise or discharge, such Third Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the indemnifying party's prior written consent of the Indemnified Party, such (which consent shall not to be unreasonably withheld).
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Indemnification for Third Party Claims.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third The party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement Section 10.2 (the “Indemnified Party”) shall agrees to give prompt notice in writing to the Party required party against whom indemnity is to provide indemnification hereunder be sought (the “Indemnifying Party”) promptly after of the Indemnified Party has actual knowledge assertion of any Claim as to claim or the commencement of any suit, action or proceeding by any third party (“Third Party Claim”) in respect of which indemnity may be sought hereunder, under such Section 10.2. Such notice shall set forth in reasonable detail such Third Party Claim and the Indemnified Party shall permit basis for indemnification (taking into account the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory information then available to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except ). The failure to so notify the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder hereunder, except to the extent that such omission results failure shall have materially and adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in a failure the defense of actual notice any Third Party Claim and, subject to the limitations set forth in this Section 10.3, shall be entitled to control and appoint lead counsel for such defense, in each case at its own expense.
(c) The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates, (iii) the Indemnifying Party and Indemnifying has failed or is failing to prosecute or defend vigorously the Third Party is damaged as a result of such failure to give notice. Notwithstanding Claim or (iv) 30 days have passed since the foregoing, Indemnified Party requested that the Indemnifying Party may not settle any appoint counsel in order to defend the Third Party Claim related to and no such counsel has been appointed by the indemnity being provided hereunder without the consent of the Indemnified Indemnifying Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is If the result Indemnifying Party shall assume the control of the joint or concurrent fault or negligence defense of Seller and Buyerany Third Party Claim in accordance with the provisions of this Section 10.3, the Parties agree to jointly defend Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any Claim settlement of such Third Party Claim, if (i) the settlement does not expressly unconditionally release the Indemnified Party and its Affiliates from all liabilities and obligations with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on Third Party Claim, (ii) the basis settlement imposes injunctive or other equitable relief against the Indemnified Party or any of its Affiliates or (iii) the percentage settlement provides for an admission of guilt or finding of fault against the Indemnified Party or negligence and the Parties agree to reserve the determination any of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreementits Affiliates.
(e) Nothing In circumstances where the Indemnifying Party is controlling the defense of a Third Party Claim in accordance with this Section 26.1 is intended to allow any 10.3, the Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ separate counsel of its choice for such purpose, in which case the fees and expenses of such separate counsel shall be borne by the Indemnified Party; provided that in such event the Indemnifying Party shall pay the fees and expenses of such separate counsel incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim.
(f) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be indemnified from furnished such records, information and against any third party Claims testimony, and Liabilities caused byattend such conferences, arising out ofdiscovery proceedings, depositions, hearings, trials or appeals, as may be reasonably requested in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconducttherewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (GAIN Capital Holdings, Inc.)
Indemnification for Third Party Claims.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.arising
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification for Third Party Claims.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and AffiliatesIf a claim by a third party is made against an indemnified party, and their respective directorsif such indemnified party intends to seek indemnity with respect thereto under this Article VI, officers, employees and agents, from and against all such indemnified party shall promptly notify the indemnifying party in writing of such claims setting forth such claims in reasonable detail. The indemnifying party shall have thirty (30) days (or such shorter period required by a third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any claimant) after receipt of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge undertake, through counsel of any Claim as to which indemnity may be sought hereunder, its own choosing and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party settlement or defense thereof, and the indemnified party shall reimburse cooperate with it in connection therewith; PROVIDED, HOWEVER, that the Indemnified Party for its participation indemnified party may participate in such settlement or defense to the extent through counsel chosen by such indemnified party, provided that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission fees and expenses of such counsel shall be borne by the Indemnified Party to give notice as provided herein such party. The indemnified party shall not relieve pay or settle any claim which the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party indemnifying party is damaged as a result of such failure to give noticecontesting. Notwithstanding the foregoing, the Indemnifying Party may not indemnified party shall have the right to pay or settle any Claim related such claim, provided that in such event it shall waive any right to indemnity for the indemnity being provided hereunder without damages incurred by the consent indemnifying party arising therefrom. If the indemnifying party does not notify the indemnified party within thirty (30) days (or such shorter period required by a third party claimant) after the receipt of the Indemnified Partyindemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof the indemnified party shall have the right to contest, such consent settle or compromise the claim but shall not thereby waive any right to be unreasonably withheldindemnity therefor pursuant to this Agreement.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Samples: Servicing Rights Purchase Agreement (Life Financial Corp)
Indemnification for Third Party Claims.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification for Third Party Claims.
Subject to the limits in Section 11.10 (a“Limitations of Liability; Remedies and Damages”), each Party (the “Indemnifying Party”) Seller shall indemnify, defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project other Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge and its Affiliates and each of any Claim as to which indemnity may be sought hereundertheir trustees, shareholders, owners, managers, directors, officers, partners, members, agents and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expenseemployees, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any and all claims, liability, costs or expenses for loss, damage, or injury, including damage and liability for bodily injury to or death of third party Claims and Liabilities caused byPersons or damage to property of third Persons, brought by any third Person (collectively, “Loss”), to the extent arising out of, or in connection with with, or resulting from, the performance Indemnifying Party's breach of this Agreement Agreement, including any of the representations or warranties made in this Agreement, or the Indemnifying Party's negligent action, which it takes or fails to take related to this Agreement, which is inconsistent with its obligations under this Agreement; provided, however, that neither Party shall have any indemnification obligations hereunder in respect of any Loss to the extent caused by the other Party's negligence or willful misconduct. Each Party hereto shall furnish the other Party with notice promptly (but in no event later than ten (10) Days prior to the time any response is required by law) of any event or circumstances, or the threat thereof, which might give rise to such indemnification. Such notice shall be given as soon as reasonably practicable after the Party obligated to give such notice becomes aware of such Claims claim or Liabilities were caused byproceeding and shall include a complete copy of all notices, arose out ofpleadings and other papers related thereto. Failure to give such notice shall not excuse an indemnification obligation. Fuel Manager shall not, however, be required to reimburse, defend, or were in indemnify any way incidental LIPA Indemnified Party for any Loss to the extent such Loss is due to (a) Fuel Manager being directed by LIPA to take or in connection with refrain from taking any action which is contrary to Fuel Manager’s advice; (b) any act or omission of any LIPA Indemnified Party determined to be responsible for or contributing to the Loss; or (c) any customer claim brought by a retail or wholesale electric customer of LIPA that is not directly related to a breach by Fuel Manager of its own negligence obligations under this Agreement; or intentional misconduct(d) Buyer’s failure to make payments to third Persons pursuant to Section 3.6 of this Agreement.
Appears in 1 contract
Samples: Fuel Management Agreement
Indemnification for Third Party Claims. The following procedures shall be applicable with respect to indemnification for Damages made or asserted by third parties ("Third Party Claims").
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents Each Person entitled to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement Section 7.2 or 7.3 hereof (the “each, an "Indemnified Party”") shall give notice to the Party required to provide party or parties from whom it is seeking indemnification hereunder (collectively, the “"Indemnifying Party”") written notice as promptly as reasonably practicable after the written assertion of any Third-Party Claim or commencement of any action, suit or proceeding in respect thereof; provided, however, that, if an Indemnified Party has actual knowledge of any Claim as fails to which indemnity may be sought hereunder, and the Indemnified Party shall permit the give Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; written notice as provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expenseherein, except the Indemnifying Party shall reimburse the Indemnified only be relieved of its obligations under this Article VII in respect of such Third-Party for its participation in such defense Claim if and to the extent that the Indemnifying Party requests is materially prejudiced thereby (whether as a result of the forfeiture of substantive defenses or otherwise).
(b) Promptly after receipt of written notice of a Third-Party Claim as contemplated by Section 7.4(a), the Indemnifying Party may in its sole discretion elect to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that (i) if the Indemnifying Party fails, within a reasonable time after receipt of written notice of such Third-Party Claim, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall have the right to participate undertake the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party (upon notifying the Indemnified Party of its election to do so) to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party at any time prior to the settlement, compromise, judgment or other final determination thereof, (ii) if there exists a direct or indirect conflict of interest exists between the Indemnified Party and the Indemnifying Party in its own defense; and
(iii) respect of the omission Third-Party Claim that would prohibit the assumption of the defense by the Indemnified Party under the applicable principles of legal ethics, the Indemnified Party shall (upon written notice to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except election to do so) have the extent that right to undertake the defense of such omission results in a failure Third-Party Claim on behalf of actual notice to and for the account and risk of the Indemnifying Party (it being understood and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, agreed that the Indemnifying Party may shall not be entitled to assume the defense of such Third-Party Claim), provided that if the Indemnified Party does undertake the defense, the Indemnified Party shall not settle any Claim related to the indemnity being provided hereunder such claim without the written consent of the Indemnified Indemnifying Party, such consent not to be unreasonably withheld.
, (diii) With regard if the Indemnified Party in its sole discretion so elects, it shall be entitled to any employ separate counsel and to participate in the defense of such Third-Party Claim or Liability which is (and the result Indemnifying Party shall cooperate with the Indemnified Party so as to allow it to participate in the defense thereof), but the fees and expenses of counsel so employed shall (except as otherwise contemplated by clauses (i) and (ii) above) be borne solely by the Indemnified Party and (iv) without the prior written consent of the joint or concurrent fault or negligence of Seller and BuyerIndemnified Party, the Parties agree Indemnifying Party shall not settle or compromise any Third-Party Claim, or consent to jointly defend the entry of any Claim judgment relating thereto, that does not include as an unconditional term thereof the grant by the claimant or plaintiff to each Indemnified Party of a release from any and all liability in respect thereof. In any event, the Indemnifying Party and the Indemnified Party shall cooperate in the defense of any claim or litigation subject to this Section 7.4 and the records of each shall be available to the other with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconductdefense.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bayard Drilling Technologies Inc)
Indemnification for Third Party Claims.
(a) Seller The following procedures shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all be applicable with respect to indemnification for third party Claims and Liabilities for injury, including death, and property damage caused by, claims arising out of, or in connection with the performance by any Project Party provision of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agentsthis Agreement.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for Promptly after receipt by the Indemnifying Party who party seeking indemnification hereunder (an "Indemnitee") of written notice of the assertion or the commencement of any claim, liability or obligation by a third party, whether by legal process or otherwise (a "Claim"), with respect to any matter within the scope of Sections 18A or 18B hereof, the Indemnitee shall conduct give written notice thereof (the defense of such Claim or litigation shall be reasonably satisfactory "Notice") to the Indemnified Party;
Person from whom indemnification is sought pursuant hereto (iithe "Indemnitor") and shall thereafter keep the Indemnified Party may participate in such defense at its own expenseIndemnitor reasonably informed with respect thereto, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent provided that the Indemnifying Party requests failure of the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnifying Party Indemnitor of its indemnification obligations hereunder except unless such failure results in (i) a default judgment, (ii) the expiration of the time to answer a complaint or (iii) material prejudice to Indemnitor's defense of such Claim. In case any such Claim is brought against any Indemnitee, the Indemnitor shall be entitled to assume the defense thereof, by written notice of its intention to the extent that such omission results in a failure Indemnitee within 30 days after receipt of actual notice the Notice, with counsel reasonably satisfactory to the Indemnifying Party and Indemnifying Party is damaged as a result Indemnitee at the Indemnitor's own expense. If the Indemnitor shall assume the defense of such failure to give noticeClaim, it shall not settle such Claim without the prior consent of the Indemnitee, which consent shall not be unreasonably withheld. Notwithstanding the foregoingassumption by the Indemnitor of the defense of any Claim as provided in this 18C, the Indemnifying Party Indemnitee shall be permitted to join in the defense of such Claim and to employ counsel at its own expense.
(ii) If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or shall notify the Indemnitee that it will not assume the defense of any such Claim, then the Indemnitee shall assume the defense of any such Claim, in which event it may do so in such manner as it may deem appropriate, provided that it shall not settle any Claim related which would give rise to the indemnity being provided hereunder indemnitor's liability under Sections 18A or 18B hereof, as the case may be, without 27 the consent of the Indemnified PartyIndemnitor's prior written consent, such consent consent, which shall not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims The Indemnitor shall be resolved on permitted to join in the basis of the percentage of fault or negligence and the Parties agree to reserve the determination defense of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended Claim and to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with employ counsel at its own negligence or intentional misconductexpense.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hollywood Theaters Inc)
Indemnification for Third Party Claims. The following procedures shall be applicable with respect to indemnification for third party claims arising in connection with any provision of this Agreement.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused Promptly after receipt by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (an "Indemnitee") of written notice of the “Indemnifying Party”) promptly after assertion or the Indemnified Party has actual knowledge commencement of any Claim as claim, liability or obligation by a third party, whether by legal process or otherwise (a "Claim"), with respect to which indemnity may be any matter within the scope of Sections 7.2 or 7.3 hereof, the Indemnitee shall give written notice thereof (the "Notice") to the Person from whom indemnification is sought hereunderpursuant hereto (the "Indemnitor") and shall thereafter keep the Indemnitor reasonably informed with respect thereto, and provided that the Indemnified Party shall permit the Indemnifying Party (at the expense failure of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnifying Party Indemnitor of its indemnification obligations hereunder except to the extent that unless such omission failure results in (i) a failure of actual notice to default judgment, (ii) the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent expiration of the Indemnified Party, such consent not time to be unreasonably withheld.
answer a complaint or (diii) With regard material prejudice to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution Indemnitor's defense of such Claim. Such pro rata share In case any such Claim is brought against any Indemnitee, the Indemnitor shall be based upon a final judicial determination entitled to assume the defense thereof, by written notice of its intention to the Indemnitee within 30 days after receipt of the Parties’ comparative fault or negligence orNotice, in with counsel reasonably satisfactory to the absence Indemnitee at the Indemnitor's own expense. If the Indemnitor shall assume the defense of such determinationClaim, it shall not settle such Claim without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld. Notwithstanding the assumption by mutual agreement.
(e) Nothing the Indemnitor of the defense of any Claim as provided in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by7.4(a), arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.Indemnitee
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Hollywood Theaters Inc)
Indemnification for Third Party Claims. The following procedures shall be applicable with respect to indemnification for third party claims arising in connection with any provision of this Article 6.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused Promptly after receipt by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (an "Indemnitee") of written notice of the “Indemnifying Party”) promptly after assertion or the Indemnified Party has actual knowledge commencement of any Claim claim, liability or obligation by a third party, whether by legal process or otherwise (a "Claim"), with respect to any matter referred to in Section 6.3 or Section 6.4 hereof, as the case may be, the Indemnitee shall give written notice thereof (the "Notice") to which indemnity may be the person from whom indemnification is sought hereunderpursuant hereto (an "Indemnitor") and shall thereafter keep the Indemnitor reasonably informed with respect thereto, and the Indemnified Party shall permit the Indemnifying Party (at the expense provided that failure of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnifying Party Indemnitor of its indemnification obligations hereunder except unless such failure alone and not in conjunction with other factors results in (i) a default judgment, (ii) the expiration of the time to answer a complaint, or (iii) the inability of the Indemnitee to adequately defend against such Claim. In case any such Claim is brought against any Indemnitee, the Indemnitor shall be entitled to assume the defense thereof, by written notice of its intention to the extent that such omission results in a failure Indemnitee within thirty (30) days after receive of actual notice the Notice, with counsel reasonably satisfactory to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give noticeIndemnitee at the Indemnitor's own expense. Notwithstanding the foregoingassumption by the Indemnitor of the defense of any Claim as provided in this Section 7.5(a), the Indemnifying Party may not settle any Claim related Indemnitee shall be permitted to join in the indemnity being provided hereunder without the consent defense of the Indemnified Party, such consent not claim and to be unreasonably withheldemploy counsel at its own expense.
(db) With regard If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or Liability which is shall notify the result Indemnitee that it will not assume the defense of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share , then the Indemnitee shall be based upon a final judicial determination assume the defense of the Parties’ comparative fault or negligence orany such Claim, in the absence of which event it may do so in such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.manner as it may
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (La Man Corporation)
Indemnification for Third Party Claims.
(a) Seller shall defendIn the case of Claims made by a third party with respect to which indemnification is sought, indemnify and hold harmless Buyer, its shareholders and Affiliatesthe Indemnified Party will give prompt written notice, and their respective directorsin any event within 30 days, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with to the performance by any Project Indemnifying Party of any such Claims made upon it, provided that in the Transaction Documents event of a failure to give such notice such failure will not preclude the Indemnified Party from obtaining such indemnification but its right to indemnification may be reduced to the extent any that such delay prejudiced the defence of such Claims Claim or Liabilities were caused by increased the negligenceamount of liability or cost of defence and provided that, gross negligence or willful misconduct notwithstanding anything else herein contained, no Claim for indemnity may be made unless notice of Seller, such Claim has been given prior to the Contractor, any Subcontractor, and its respective employees or agentsexpiry of the right of indemnification pursuant to Section 7.3.
(b) Buyer shall defendThe Indemnifying Party will have the right, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give written notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense given not later than 30 days after receipt of the Indemnifying Party) notice described in Section 7.6(a), to participate in or assume control of the defense investigation and defence of any Claim or litigation resulting therefrom; the Claim, provided that:
that (i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall assumption will, by its terms, be reasonably satisfactory without cost to the Indemnified Party;
, (ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse acknowledges in writing its obligation to fully indemnify the Indemnified Party for its participation in accordance with the terms contained in this Section 7.6 in respect of such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
Claim, and (iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the such Claim is for monetary damages only. The Indemnifying Party of its indemnification obligations hereunder will not, except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without with the consent of the Indemnified Party, enter into any settlement that
(i) is not entirely indemnifiable by the Indemnifying Party pursuant to this Section 7.6,
(ii) requires the Indemnified Party to admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the Person making the Claim or waive any rights that the Indemnified Party may have against the Person making the Claim and (iii) does not include as an unconditional term thereof the giving by the Person or Persons asserting such Claim to all Indemnified Parties of an unconditional release from all liability with respect to such Claim or consent to entry of any judgment.
(c) So long as the Indemnifying Party is contesting any such Claim, the Indemnified Party will not pay or settle any such Claim. Notwithstanding the foregoing, the Indemnified Party will have the right to be unreasonably withheldpay or settle any such Claim, provided that in such event it will waive any right to indemnity therefor by the Indemnifying Party for such Claim unless the Indemnifying Party has consented to such payment or settlement.
(d) With regard to Upon the assumption of control of any Claim or Liability which is by the result of the joint or concurrent fault or negligence of Seller and BuyerIndemnifying Party, as set out in Section 7.6(b), the Parties agree Indemnifying Party will diligently proceed with the investigation and defence at its sole expense, including the employment of counsel reasonably satisfactory to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer the Indemnified Party. The Indemnified Party will co-operate in good faith in the investigation and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution defence of such Claim. Such pro rata share shall be based upon a final judicial determination , even if the investigation and defence have been assumed by the Indemnifying Party, and may participate in such investigation and defence assisted by counsel of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreementits own choice at its own expense.
(e) Nothing In any Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not controlling the investigation and defence of such action, will have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party and the Indemnified Party will at all times use all reasonable efforts to keep each other reasonably apprised of the status of any matter the investigation and defence of which they are maintaining and to co-operate in good faith with each other with respect to the investigation and defence of any such matter.
(f) The final determination of any Claim pursuant to this Section 26.1 is intended 7.6, including all related costs and expenses, will be binding and conclusive upon the Parties as to allow any the validity or invalidity, as the case may be, of such Claim against the Indemnifying Party.
(g) Should the Indemnifying Party fail to give notice to the Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out ofas provided in Section 7.6(b), or fail or decline to assume control of the investigation and defence of the Claim as provided for in connection with Section 7.6(b), the performance Indemnified Party will be entitled, at its option, to elect to make such settlement or compromise of this Agreement the Claim as in its sole discretion may appear advisable or to employ counsel to represent and defend it in relation to any such Claim, and such settlement or any other final determination of such Claim will be binding and conclusive upon the Parties as to the extent any validity or invalidity, as the case may be, of such Claims Claim against the Indemnifying Party.
(h) Notwithstanding the foregoing, the Purchaser shall have exclusive carriage of any Claim relating to Tax matters that may be expected to have an impact on Taxes of MMG or Liabilities were caused by, arose out of, MMG for any Tax period beginning on or were in any way incidental to or in connection with its own negligence or intentional misconductafter the Closing Date.
Appears in 1 contract
Samples: Share Purchase Agreement
Indemnification for Third Party Claims.
(a) Seller The following procedures shall defend, indemnify be applicable with respect to indemnification under Sections 14.08 and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all 14.09 for third party Claims and Liabilities for injury, including death, and property damage caused by, claims arising out of, or in connection with the performance by any Project Party provision of the Transaction Documents to the extent any of such Claims or Liabilities were caused this Agreement.
i. Promptly after receipt by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (an "Indemnitee") of written notice of the “Indemnifying Party”) promptly after assertion or the Indemnified Party has actual knowledge commencement of any Claim as claim, liability or obligation by a third party, whether by legal process or otherwise (a "Claim"), with respect to which indemnity may be any matter within the scope of Section 14.08 or 14.09, the Indemnitee shall give written notice thereof (the "Notice") to the Person from whom indemnification is sought hereunderpursuant hereto (the "Indemnitor") and shall thereafter keep the Indemnitor reasonably informed with respect thereto, and provided that the Indemnified Party shall permit the Indemnifying Party (at the expense failure of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnifying Party Indemnitor of its indemnification obligations hereunder except to the extent that unless such omission failure results in (i) a failure of actual notice to default judgement, (ii) the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent expiration of the Indemnified Party, such consent not time to be unreasonably withheld.
answer a complaint or (diii) With regard material prejudice to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution Indemnitor's defense of such Claim. Such pro rata share In case any such Claim is brought against any Indemnitee, the Indemnitor shall be based upon a final judicial determination entitled to assume the defense thereof by written notice of its intention to the Indemnitee within 30 days after receipt of the Parties’ comparative fault Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor's own expense. If the Indemnitor shall assume the defense of such Claim, it shall not settle such Claim without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld. Notwithstanding the assumption by the Indemnitor of the defense of any Claim as provided in this Paragraph 14.10, the Indemnitee shall be permitted to join in the defense of such Claim and to employ counsel at its own expense.
ii. If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or negligence orshall notify the Indemnitee that it will not assume the defense of any such Claim, then the Indemnitee shall assume the defense of any such Claim, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.which event it may do so
Appears in 1 contract
Samples: Purchase and Assignment Agreement (Hollywood Theaters Inc)
Indemnification for Third Party Claims. In the event of a claim by a third party arising in connection with the provision of any of the Services (“Third Party Claim”), the following rules shall apply:
10.2.1 SANOFI shall indemnify CPP and its respective officers, directors, managers, agents, representatives and employees (athe “CPP’s Indemnified Parties”) Seller shall defendagainst, indemnify and hold CPP’s Indemnified Parties harmless Buyerfrom any and all direct claims, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injurylosses or damages, including death, and property damage caused bywithout limitation reasonable attorney’s fees, arising out of, or resulting from, any Third Party Claim asserted against any CPP’s Indemnified Party for any losses or damages as a result of (i) any breach by SANOFI of its representation and warranty as set forth in connection with Section 4.1 or in Section 14.6 hereto, (ii) the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of SellerSANOFI and/or its Affiliates under this Agreement, (iii) SANOFI’s violation of any applicable law or regulations, or (iv) SANOFI’s breach of its obligations under this Agreement, except to the Contractorextent such claims, losses or damages are caused by any Subcontractorevent, action or omission that CPP is obligated to indemnify SANOFI under Subsection 10.2.2..
10.2.2 CPP shall indemnify SANOFI, its Affiliates and its respective officers, directors, managers, agents, representatives and employees or agents.
(bthe “SANOFI’s Indemnified Parties”) Buyer shall defendagainst, indemnify and hold SANOFI’s Indemnified Parties harmless Seller from any and its managersall direct claims, officers, employees and agents, from and against all third party Claims and Liabilities for injurylosses or damages, including death, and property damage caused bywithout limitation reasonable attorney’s fees, arising out of, or in connection with resulting from, any Third Party Claim asserted against any SANOFI’s Indemnified Party for any losses or damages as a result of (i) the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of BuyerCPP and/or its Affiliates under this Agreement, (ii) CPP’s violation of any applicable law or regulations, or (iii) CPP’s breach of its employees obligations under this Agreement; except to the extent such claims, losses or agentsdamages are caused by any event, action or omission that SANOFI is obligated to indemnify CPP under Subsection 10.1.2.
(c) Either 10.2.3 In the event of a Third Party seeking indemnification under this Agreement (Claim, the “Indemnified Party”) Indemnifiable Party shall give notice with reasonable promptness send to the Party required to provide indemnification hereunder indemnifying party (the “Indemnifying Party”) promptly after a written notice specifying the Indemnified Party has actual knowledge nature of any Claim as to which indemnity may be sought hereunder, such claim or demand and the Indemnified amount or estimated amount (which estimate shall not be conclusive of the final amount of such claim and demand) (a “Third Party Claim Notice”). The Indemnifying Party shall permit take such action to avoid, defend, dispute, resist, appeal or compromise such claim as it may determine, after consulting the Indemnifying Indemnifiable Party (and taking into account its reasonable comments and requests. The Indemnifiable Party shall take, at the expense of the Indemnifying Party) ’s expense, all reasonable steps to assume the defense avoid or mitigate any losses, damages or injury in respect of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the which it might be entitled to indemnification. The Indemnifying Party who shall conduct the defense of such the Third Party Claim or litigation shall be in good faith using all the means and defenses reasonably satisfactory available to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the it. The Indemnifying Party shall reimburse further keep the Indemnified Indemnifiable Party for informed of the developments of the underlying claim and its participation defense and shall promptly provide the Indemnifiable Party with all notices, communications and filings (including court papers) in relation thereto. No such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party claim or demand may not settle any Claim related to the indemnity being provided hereunder be settled without the consent of the Indemnified Indemnifiable Party, such which consent shall not to be unreasonably withheld.
(d) With regard withheld or delayed. Portions herein identified by [*****] have been omitted pursuant to any Claim or Liability which is the result a request for confidential treatment under Rule 406 of the joint or concurrent fault or negligence Securities Act of Seller and Buyer1933, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence as amended. A complete copy of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection document has been filed separately with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.Securities and Exchange Commission
Appears in 1 contract
Samples: Master Development Agreement
Indemnification for Third Party Claims.
(a) Seller shall defend, The Borrower agrees to indemnify and hold harmless Buyerthe Bank and its officers, its shareholders employees, agents, attorneys and Affiliatesrepresentatives (singularly, an “Indemnified Party”, and their respective directorscollectively, officers, employees and agents, the “Indemnified Parties”) from and against all third any loss, cost, liability, damage or expense (“Damages”) involving a claim by a person who or which is not a party Claims to this Agreement or an affiliate of a party to this Agreement (“Third Party Claim”) (including the reasonable fees and Liabilities for injuryout-of-pocket expenses of counsel to the Bank, including deathall local counsel hired by such counsel in the event Borrower does not provide such representation as set forth below) in respect of any commenced or threatened litigation, and property damage caused byadministrative proceeding or investigation under any federal securities law, arising out offederal or state environmental law, or any other statute of any jurisdiction, or any regulation, or at common law or otherwise, which is alleged to arise out of or is based upon any acts, practices or omissions or alleged acts, practices or omissions of the Borrower or its agents or arises in connection with the duties, obligations or performance by any Project Party of the Transaction Documents Indemnified Parties in negotiating, preparing, executing, accepting, keeping, completing, countersigning, issuing, selling, delivering, releasing, assigning, handling, certifying, processing or receiving or taking any other action with respect to the extent Loan Documents and all documents, items and materials contemplated thereby even if any of such Claims the foregoing arises out of an Indemnified Party’s ordinary negligence. The indemnity set forth herein shall be in addition to any other obligations or Liabilities were caused by liabilities of the negligenceBorrower to the Bank hereunder or at common law or otherwise, and shall survive any termination of this Agreement, the expiration of the Loans and the payment of all indebtedness of the Borrower to the Bank hereunder and under the Notes, provided that the Borrower shall have no obligation under this Section 14 to the Bank with respect to any of the foregoing arising out of the bad faith, gross negligence or willful misconduct of Seller, the Contractor, Bank or any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “other Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Indemnification for Third Party Claims.
(a) Seller Developer shall defend, indemnify and hold harmless BuyerPacifiCorp and the other PacifiCorp Indemnified Parties from and against all third party Claims and Liabilities for injury, its shareholders and Affiliatesincluding death, and their respective property damage caused by, arising out of, or in connection with the performance by any Project Party of the Project Documents to the extent any of such Claims or Liabilities were caused by breach of any representation, warranty or obligation under this Agreement or any Project Document by or the negligence, gross negligence or willful misconduct of any Developer Parties. PacifiCorp shall defend, indemnify and hold harmless Developer and its directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party PacifiCorp of the Transaction Project Documents to which it is a Party to the extent any of such Claims or Liabilities were caused by the negligencebreach of any representation, gross negligence warranty or willful misconduct of Seller, the Contractor, obligation under this Agreement or any Subcontractor, and its respective employees other Project Document to which it is a party by or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of BuyerPacifiCorp, its employees or agents.
(c) . Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) : counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) ; the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) and the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and the Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) withheld or delayed. With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller Developer and BuyerPacifiCorp, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer PacifiCorp and SellerDeveloper. Any Claim of contribution or indemnification between Buyer PacifiCorp and Seller Developer relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) agreement of the Parties. Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement or any other Project Document to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own breach of any representation, warranty or obligation under this Agreement or any other Project Document to which it is a party or its negligence, gross negligence or intentional willful misconduct. Title Indemnity and Liens. Developer shall promptly pay or cause to be paid when due all obligations for labor and material in connection with the Work. Developer shall discharge at once, or bond with a bonding company or surety acceptable to PacifiCorp or otherwise secure against all Liens and attachments which are filed in connection with the Work.
Appears in 1 contract
Samples: Transfer Agreement
Indemnification for Third Party Claims. The following procedures shall be applicable with respect to indemnification for Claims (as defined below) of third parties or of present or former employees of any Indemnitor ("Third Party Claims") arising in connection with any provision of this Agreement.
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused Promptly after receipt by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (an "Indemnitee") of written notice of the “Indemnifying Party”) promptly after assertion or the Indemnified Party has actual knowledge commencement of any Claim as claim, liability or obligation by a third party, whether by legal process or otherwise (a "Claim"), with respect to which indemnity may be any matter within the scope of Sections 9.2, 9.3, 9.4 and 9.5 hereof, the Indemnitee shall give written notice thereof (the "Notice") to the Person from whom indemnification is sought hereunderpursuant hereto (the "Indemnitor") and shall thereafter keep the Indemnitor reasonably informed with respect thereto, and provided that the Indemnified Party shall permit the Indemnifying Party (at the expense failure of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnifying Party Indemnitor of its indemnification obligations hereunder except to the extent that unless such omission failure results in (i) a failure of actual notice to default judgment, (ii) the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent expiration of the Indemnified Party, such consent not time to be unreasonably withheld.
answer a complaint or (diii) With regard material prejudice to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution Indemnitor's defense of such Claim. Such pro rata share In case any such Claim is brought against any Indemnitee, the Indemnitor shall be based upon a final judicial determination entitled to assume the defense thereof, by written notice of its intention to the Indemnitee within 30 days after receipt of the Parties’ comparative fault or negligence orNotice, in with counsel reasonably satisfactory to the absence Indemnitee at the Indemnitor's own expense. If the Indemnitor shall assume the defense of such determinationClaim, it shall not settle such Claim without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld. Notwithstanding the assumption by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow the Indemnitor of the defense of any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.Claim as provided
Appears in 1 contract
Samples: Master Agreement (Bayard Drilling Technologies Inc)
Indemnification for Third Party Claims.
(ai) Seller shall defendIn the event that any Claim for which either Seller, indemnify and hold harmless on the one hand, or Buyer, its shareholders and Affiliateson the other hand (each an “Indemnifying Party”), and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents could be liable to the extent any of such Claims other Parties or Liabilities were caused by the negligenceanother indemnified Person (each collectively, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the an “Indemnified Party”) shall give notice under this §21 is asserted against or sought to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the be collected from such Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunderby a third party, and the Indemnified Party shall permit notify the Indemnifying Party of such Claim within the time periods specified in §21(d) hereof, specifying the nature of and specific basis for such Claim and the amount or the estimated amount thereof to the extent then feasible (the “Claim Notice”); provided, however, that no failure or delay in the giving of such Claim Notice shall relieve the Indemnifying Party of any Liability hereunder. The Indemnifying Party shall have thirty (30) days from the delivery of the Claim Notice (the “Notice Period”) to notify the Indemnified Party whether or not it desires, at the sole cost and expense of the Indemnifying Party) , to defend the Indemnified Party against such Claim; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial to the defense of such Claim. If the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such Claim or demand and except as hereinafter provided, then the Indemnifying Party shall have the right, at its own expense and after reasonable coordination with the Indemnified Party, to assume the defense of any such Claim either directly or litigation resulting therefrom; provided that:
through its insurer. In such case, but subject to the next section below, (i) counsel for the Indemnifying Party who shall conduct control the defense course of and make all decisions concerning any such Claim or litigation shall be reasonably satisfactory to proceeding, select and employ counsel (with the approval of the Indemnified Party;
, not to be unreasonably withheld), and expeditiously settle or prosecute such proceeding to a final conclusion, and (ii) the Indemnified Party may participate in in, but not control, any such defense or settlement at its own expensecost and with its own counsel, except and (iii) if requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Claim in question, in making any counterclaim against the Person asserting the third-party Claim or any cross-complaint against any Person. To the extent the Indemnifying Party elects not to assume the defense of any Claim, the Indemnified Party shall, at the cost and for the account of the Indemnifying Party, assume all obligations with respect thereto and shall take such prudent steps as may be required in connection therewith as though the indemnities did not exist and such Claim were the Indemnified Party’s responsibility. In such case, the Indemnified Party shall have the right with respect to any Claim for which it is assuming the defense to choose counsel and make decisions regarding any such proceeding, provided that it shall keep the Indemnifying Party advised with respect thereto. Subject to §21(e)(iii) below, the Indemnifying Party shall reimburse be bound by any and all rulings, judgments, compromises and settlements reached by the Indemnified Party in good faith.
(ii) If a Party becomes an Indemnified Party, it shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party and permit the Indemnifying Party reasonable access to the Indemnified Party’s books, records, facilities and employees for the purpose of permitting the Indemnifying Party to perform its participation in such obligations under this Sxxxxxx §00; provided, however, that the Indemnified Party shall not be required to disclose to the Indemnifying Party any documents or correspondence covered by the attorney-client privilege or the work product doctrine, except pursuant to a joint defense to agreement. To the extent that any documents or correspondence are covered by the attorney-client privilege or the work product doctrine, the Indemnified Party shall notify the Indemnifying Party requests if the Indemnified Party seeks to participate protect such privilege with respect to third parties. The Indemnified Party shall disclose to the Indemnifying Party the non-privileged contents of any such documents or correspondence. If requested by the Indemnifying Party, the Indemnified Party and the Indemnifying Party shall negotiate in its own defense; andgood faith a joint defense agreement with respect to the matter that is the subject of the privileged communication or work product.
(iii) No third-party Claim may be made the omission subject of a consent decree or otherwise settled or compromised by an Indemnified Party without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. No consent decree or other settlement or compromise of any such Claim involving (A) the entry of a plea of guilty or nolo contendere to any criminal charge, or (B) any admission of responsibility for which the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoingcould be held criminally liable, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder be entered into without the prior written consent of the Indemnified Party. Any consent decree or other settlement or compromise affecting Buyer’s ownership, such operation or use of the Assets shall require the prior consent of Buyer, which shall not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
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Indemnification for Third Party Claims. The following procedures shall be applicable with respect to indemnification for Damages made or asserted by third parties ("Third Party Claims").
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents Each Person entitled to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement Section 7.2 or 7.3 hereof (the “each, an "Indemnified Party”") shall give notice to the Party required to provide party or parties from whom it is seeking indemnification hereunder (collectively, the “"Indemnifying Party”") written notice as promptly as reasonably practicable after the written assertion of any Third- Party Claim or commencement of any action, suit or proceeding in respect thereof; provided, however, that, if an Indemnified Party has actual knowledge of any Claim as fails to which indemnity may be sought hereunder, and the Indemnified Party shall permit the give Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; written notice as provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expenseherein, except the Indemnifying Party shall reimburse the Indemnified only be relieved of its obligations under this Article VII in respect of such Third-Party for its participation in such defense Claim if and to the extent that the Indemnifying Party requests is materially prejudiced thereby (whether as a result of the forfeiture of substantive defenses or otherwise).
(b) Promptly after receipt of written notice of a Third-Party Claim as contemplated by Section 7.4(a), the Indemnifying Party may in its sole discretion elect to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that (i) if the Indemnifying Party fails, within a reasonable time after receipt of written notice of such Third-Party Claim, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall have the right to participate undertake the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party (upon notifying the Indemnified Party of its election to do so) to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party at any time prior to the settlement, compromise, judgment or other final determination thereof, (ii) if there exists a direct or indirect conflict of interest exists between the Indemnified Party and the Indemnifying Party in its own defense; and
(iii) respect of the omission Third-Party Claim that would prohibit the assumption of the defense by the Indemnified Party under the applicable principles of legal ethics, the Indemnified Party shall (upon written notice to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except election to do so) have the extent that right to undertake the defense of such omission results in a failure Third-Party Claim on behalf of actual notice to and for the account and risk of the Indemnifying Party (it being understood and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, agreed that the Indemnifying Party may shall not settle any Claim related be entitled to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.assume the
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Indemnification for Third Party Claims.
12.2.1 Each Beneficiary (a“Indemnitor”) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, each other Beneficiary (“Indemnitee”) from and against all third party Claims loss, damage, liability, cost, expense, or injury (including reasonable attorneys’ fees and Liabilities for injuryexpenses) (individually a “Loss” and collectively, “Losses”) incurred by such Indemnitee, its employees, or Affiliate Entities, resulting from any claim, complaint, proceeding or cause of action brought by a Third Party, including deathIHI JU (“Third Party Claims”) arising from (i) the material breach of any representation, and property damage caused bywarranty or covenant made by the Indemnitor hereunder, arising out of, (ii) gross negligence or in connection with wilful misconduct on the performance by any Project Party part of the Transaction Documents Indemnitor in performing its obligations under this Consortium Agreement, or, subject to Clause 12.1 of this Consortium Agreement, (iii) infringement of Third Party Intellectual Property rights by such Indemnitor, its employees, Sub- Contractors, Associated Partners, Affiliated Entities or its agents; provided in each case that: − except in the case of wilful misconduct [OPTIONAL:, gross negligence and breach of confidentiality obligations], the foregoing obligation to indemnify shall not extend to claims for indirect, special or consequential loss or damage, including but not limited to loss of profit, revenue or contracts; and − [OPTIONAL: the total limit of liability of any Indemnitor to any Indemnitee in respect of any one claim or series of connected claims, shall not exceed the higher of (i) [1,000,000] euros; and (ii) twice the financial value (of the Grant or of the in-kind contribution, as the case may be,) corresponding to that Indemnitor’s Action Share; and] − an Indemnitor shall not be obligated to indemnify an Indemnitee for any Losses to the extent such Losses arise as a result of (i) the material breach of any of such Claims representation, warranty or Liabilities were caused covenant made by the negligence, Indemnitee under this Consortium Agreement or (ii) any gross negligence or willful wilful misconduct on the part of Seller, any Indemnitee.
12.2.2 The Indemnitee shall immediately advise the Contractor, Indemnitor of any Subcontractor, such Loss or Third Party Claim in writing. The Indemnitor shall have the right to select defence counsel and to direct the defence or settlement of any claim which is the subject of this indemnity. The Indemnitee shall reasonably co-operate with the Indemnitor and its respective employees or agents.
(b) Buyer shall defend, indemnify legal representatives in the investigation and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge defence of any Claim as to which indemnity such claim. The Indemnitee may be sought hereunderobtain representation by separate legal counsel, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except . The Indemnitee shall refrain from making any admission of liability or any attempt to settle the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder claim without the consent of the Indemnified Party, such consent not to be unreasonably withheldIndemnitor’s prior written consent.
(d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
Samples: Consortium Agreement
Indemnification for Third Party Claims. The following procedures shall be applicable with respect to indemnification for third party claims arising in connection with any provision of this Agreement:
(a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third Promptly after receipt by the party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party seeking indemnification hereunder (an “Indemnitee”) of written notice of the Transaction Documents assertion or the commencement of any claim, liability or obligation by a third party, whether by legal process or otherwise (a “Claim”), with respect to any matter referred to in Section 7.3 or Section 7.4 hereof, as the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Sellercase may be, the Contractor, any Subcontractor, and its respective employees or agents.
(b) Buyer Indemnitee shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents.
(c) Either Party seeking indemnification under this Agreement give written notice thereof (the “Indemnified PartyNotice”) shall give notice to the Party required to provide persons from whom indemnification hereunder is sought pursuant hereto (the an “Indemnifying PartyIndemnitor”) promptly after and shall thereafter keep the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunderIndemnitor reasonably informed with respect thereto, and the Indemnified Party shall permit the Indemnifying Party (at the expense provided that failure of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that:
(i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and
(iii) the omission by the Indemnified Party Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnifying Party Indemnitor of its indemnification obligations hereunder except unless such failure alone and not in conjunction with other factors results in (i) a default judgment, (ii) the expiration of the time to answer a complaint, or (iii) the inability of the Indemnitor to adequately defend against such Claim. In case any such Claim is brought against any Indemnitee, the Indemnitor shall be entitled to assume the defense thereof, by written notice of its intention to the extent that such omission results in a failure Indemnitee within thirty (30) days after receipt of actual notice Notice, with counsel reasonably satisfactory to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give noticeIndemnitee at the Indemnitor’s own expense. Notwithstanding the foregoingassumption by the Indemnitor of the defense of any Claim as provided in this Section 7.5(a), the Indemnifying Party Indemnitee shall be permitted to join in the defense of such claim and to employ counsel at its own expense.
(b) If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or shall notify the Indemnitee that it will not assume the defense of any such Claim, then the Indemnitee shall assume the defense of any such Claim, in which event it may not settle do so in such manner as it may deem appropriate. The Indemnitor shall be permitted to join in the defense of such Claim and to employ counsel at its own expense.
(c) No Indemnitee shall make any settlement of any Claim related which would give rise to liability on the indemnity being provided part of an Indemnitor hereunder without the written consent of the Indemnified PartyIndemnitor, such which consent shall not to be unreasonably withheld. If a firm written offer is made to settle a Claim and the Indemnitor desires to accept such settlement offer, but the Indemnitee elects not to consent thereto, then the Indemnitee may continue to contest or defend such Claim; provided, however, that the total maximum liability of the Indemnitor to indemnify or otherwise reimburse the Indemnitee in accordance with this Agreement with respect to such Claim shall be limited to and shall not exceed the amount of the settlement offer rejected by the Indemnitee, plus reasonable out-of-pocket costs and expenses (including attorneys’ fees) to the date of notice that the Indemnitor desires to accept such settlement offer.
(d) With regard Amounts payable by an Indemnitor to any Claim an Indemnitee under Section 7.3 or Liability which is Section 7.4 hereof, as the result of the joint or concurrent fault or negligence of Seller and Buyercase may be, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on payable by the basis of Indemnitor as incurred by the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreementIndemnitee.
(e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.
Appears in 1 contract
