Common use of Indemnification of Seller by Buyer Clause in Contracts

Indemnification of Seller by Buyer. Buyer and its successors ---------------------------------- and assigns shall indemnify and hold Seller harmless against and in respect of, and shall reimburse Seller for: 12.2.1 Any and all losses, liabilities, or damages resulting from any untrue representation, breach of warranty, or nonfulfillment of any covenant or agreement by Buyer contained herein or in any certificate, document, or instrument delivered to Seller hereunder; 12.2.2 Any claims for finder's fees or brokerage or other commissions by any person, firm, or corporation, arising by reason of any services alleged to have been rendered to or at the instance of Buyer with respect to this Agreement or any of the transactions contemplated hereby; 12.2.3 Any and all losses, liabilities, or damages resulting from Buyer's operation or ownership of the System after the Closing Date or relating to obligations undertaken by Buyer pursuant to the Assumption Agreement; and 12.2.4 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expenses, including, without limitation, reasonable legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity. If any claim covered by the foregoing indemnity is asserted against Seller by a third party, Seller shall promptly give Buyer notice thereof and give Buyer an opportunity to defend or settle the same with counsel of Buyer's choice and at Buyer's expense. The failure to give Buyer prompt notice of any such claim shall not affect Buyer's obligations pursuant to this Section 12.2, except that Seller shall be responsible for any damages proximately incurred by Buyer as a result of such failure. Seller shall extend its full cooperation in connection with such defense, subject to reimbursement for actual out-of-pocket expenses incurred by Seller as the result of a request by Buyer. The settlement of any such claim by Seller prior to giving Buyer such opportunity or while Buyer is providing an appropriate defense, without Buyer's prior written consent (which consent shall not be unreasonably withheld or delayed), shall release Buyer from its obligations hereunder with respect to such claim or action so settled. No settlement which fails to contain a provision expressly negating any claim of wrongdoing on the part of Seller shall be entered into on behalf of Seller without its prior written consent. Such consent shall not be unreasonably withheld or delayed, and may only be withheld to the extent Seller reasonably believes the lack of such a provision may result in a material adverse impact on its business operations. If Buyer fails to defend any such claim within a reasonable time after notice thereof, Seller shall be entitled to assume the defense thereof and Buyer shall be bound by the results obtained by Seller with respect to such claim, and Buyer shall be liable to Seller for all expenses incurred in such defense and/or in any action to enforce its indemnification rights hereunder, including, without limitation, reasonable attorneys' fees and any settlement payments. 12.2.5 Claims for indemnification arising solely by reason of any misrepresentation or breach or nonfulfillment of any representation, warranty or covenant shall not be payable by Buyer hereunder unless such claims exceed, on a cumulative basis, the sum of $25,000 ("Buyer's Basket Amount"). In the event such claims exceed Buyer's Basket Amount, such claims shall be payable from the first dollar thereof. Notwithstanding anything in this Agreement to the contrary, in no event shall the liability of Buyer to Seller under this Agreement exceed $2,500,000 in the aggregate.

Indemnification of Seller by Buyer. (a) Buyer and its successors ---------------------------------- TS hereby, jointly and assigns shall severely, indemnify and hold Seller harmless against from and in respect ofagainst, and shall agrees to defend promptly Seller from and reimburse Seller for: 12.2.1 Any , any and all losses, liabilitiesLosses that Seller may at any time suffer or incur, or damages resulting from become subject to, as a result of or in connection with: (i) any untrue representation, breach of warranty, or nonfulfillment inaccuracy of any covenant or agreement of the representations and warranties made by Buyer contained herein or in any certificate, document, or instrument delivered to Seller hereunder; 12.2.2 Any claims for finder's fees or brokerage or other commissions by any person, firm, or corporation, arising by reason of any services alleged to have been rendered to or at the instance of Buyer with respect to this Agreement or any other agreement or instrument delivered by Buyer or TS pursuant to this Agreement; (ii) any failure by Buyer or TS to carry out, perform, satisfy and discharge any of their respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the transactions contemplated hereby; 12.2.3 Any agreements and all lossesinstruments delivered by Buyer or TS pursuant to this Agreement; provided, liabilitieshowever, that Seller shall have no right to be indemnified, held harmless from, defended or damages resulting from Buyer's operation reimbursed under Section 9.2(a)(i) unless such right is asserted (whether or ownership of the System not such Losses have actually been incurred) on or before three years after the Closing Date except with respect to Sections 5.1 and 5.2 for which there is no time limitation for asserting such right. (b) Seller may assert a claim for indemnification against Buyer or relating TS for any matter not involving a third party by giving notice to obligations undertaken by Buyer pursuant to or TS specifying in reasonable detail the Assumption Agreement; andbasis for such claim. 12.2.4 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expenses, including, without limitation, reasonable legal fees and expenses, incident to any of (c) In the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity. If any event a third-party claim against Seller arises that is covered by the foregoing indemnity provisions of Section 9.2(a) of this Agreement, notice shall be given promptly by Seller to Buyer or TS. Provided that Buyer or TS admits in writing to Seller that such claim is asserted against covered by the indemnity provisions of Section 9.2(a) hereof, Buyer and TS shall have the right to contest and defend by all appropriate legal proceedings such claim and to control all settlements (unless Seller by a third party, Seller shall promptly give Buyer notice thereof and give Buyer an opportunity LGC agree to assume the cost of settlement and to forgo such indemnity) and to select lead counsel to defend any and all such claims at the sole cost and expense of Buyer and TS; provided, however, that neither Buyer nor TS may effect any settlement that could result in any cost, expense or settle liability to Seller unless Seller consents in writing to such settlement and Buyer and TS agree to indemnify Seller therefor. Seller may select counsel to participate in any defense, in which event such counsel shall be at the same sole cost and expense of Seller. In connection with counsel of Buyer's choice and at Buyer's expense. The failure to give Buyer prompt notice of any such claim claim, action or proceeding, the parties shall not affect Buyer's obligations pursuant cooperate with each other and provide each other with access to this Section 12.2, except that Seller shall be responsible for any damages proximately incurred by relevant books and records in their possession. (d) Buyer as a result of such failure. Seller shall extend its full cooperation in connection with such defense, subject to reimbursement for actual out-of-pocket expenses incurred by Seller as the result of a request by Buyer. The settlement of any such claim by Seller prior to giving Buyer such opportunity or while Buyer is providing an appropriate defense, without Buyer's prior written consent (which consent shall not be unreasonably withheld or delayedrequired to indemnify Seller under Section 9.2(a) hereof (i) unless and until the amount of all Losses for which indemnification is sought by Seller hereunder first exceeds $100,000, in which event all amounts sought by Seller hereunder shall be subject to indemnification (including the first $100,000), shall release Buyer or (ii) from its obligations hereunder with respect to and after such claim or action so settled. No settlement time that the aggregate amount of Losses for which fails to contain a provision expressly negating any claim of wrongdoing on Seller has been indemnified under Section 9.2(a) hereof exceeds the part of Seller shall be entered into on behalf of Seller without its prior written consent. Such consent shall not be unreasonably withheld or delayed, and may only be withheld to the extent Seller reasonably believes the lack of such a provision may result in a material adverse impact on its business operations. If Buyer fails to defend any such claim within a reasonable time after notice thereof, Seller shall be entitled to assume the defense thereof and Buyer shall be bound by the results obtained by Seller with respect to such claim, and Buyer shall be liable to Seller for all expenses incurred in such defense and/or in any action to enforce its indemnification rights hereunder, including, without limitation, reasonable attorneys' fees and any settlement paymentsPurchase Price. 12.2.5 Claims for indemnification arising solely by reason of any misrepresentation or breach or nonfulfillment of any representation, warranty or covenant shall not be payable by Buyer hereunder unless such claims exceed, on a cumulative basis, the sum of $25,000 ("Buyer's Basket Amount"). In the event such claims exceed Buyer's Basket Amount, such claims shall be payable from the first dollar thereof. Notwithstanding anything in this Agreement to the contrary, in no event shall the liability of Buyer to Seller under this Agreement exceed $2,500,000 in the aggregate.

Indemnification of Seller by Buyer. Buyer and its successors ---------------------------------- and assigns shall indemnify indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller harmless Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a Third Party Claim (other than a claim for a Seller Indemnitee’s breach of any contract to which a Seller Indemnitee is a party) and in respect ofany way relating to, and shall reimburse resulting from or arising out of or in connection with any Third Party Claims against a Seller for: 12.2.1 Any and all lossesIndemnitee to the extent arising out of or in connection with (a) (1) the negligent or intentional acts or omissions of Buyer or its subcontractors, liabilitiesagents or employees or others under Buyer’s control (excluding any act or omission by Seller, any Seller Indemnitee or any Seller Personnel), (2) breach by Buyer of its representations, warranties or obligations under this Agreement (except to the extent caused by any Seller Indemnitee or Seller Personnel), or damages (3) any breach of a Site Lease or Interconnection Agreement, except to the extent relating to, resulting from or arising out of or in connection with any untrue representationact or omission by Seller, breach of warrantyany Seller Indemnitee or any Seller Personnel, or nonfulfillment (b) the operation of any covenant or agreement by Buyer contained herein or in any certificate, document, or instrument delivered to Seller hereunder; 12.2.2 Any claims for finder's fees or brokerage or other commissions Phase 2 New Systems by any person, firm, Person other than Seller or corporation, arising by reason an Affiliate or subcontractor of any services alleged to Seller after such Phase 2 New Systems have been rendered to or at the instance of Buyer with respect to this Agreement or any of the transactions contemplated hereby; 12.2.3 Any and all losses, liabilities, or damages resulting from Buyer's operation or ownership of the System after the Closing Date or relating to obligations undertaken Purchased by Buyer pursuant to the Assumption Agreement; and 12.2.4 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expenses, including, without limitation, reasonable legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity. If any claim covered by the foregoing indemnity is asserted against Seller by a third party, Seller shall promptly give Buyer notice thereof and give Buyer an opportunity to defend or settle the same with counsel of Buyer's choice and at Buyer's expense. The failure to give Buyer prompt notice of any such claim shall not affect Buyer's obligations pursuant to this Section 12.2, except that Seller shall be responsible for any damages proximately incurred by Buyer as a result of such failure. Seller shall extend its full cooperation in connection with such defense, Agreement (but subject to reimbursement for actual out-of-pocket expenses incurred by Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller as the result of is a request by Buyer. The settlement of any such claim by party); provided that Buyer shall have no obligation to indemnify Seller prior to giving Buyer such opportunity or while Buyer is providing an appropriate defense, without Buyer's prior written consent (which consent shall not be unreasonably withheld or delayed), shall release Buyer from its obligations hereunder with respect to such claim or action so settled. No settlement which fails to contain a provision expressly negating any claim of wrongdoing on the part of Seller shall be entered into on behalf of Seller without its prior written consent. Such consent shall not be unreasonably withheld or delayed, and may only be withheld to the extent caused by or arising out of any (i) negligence, fraud or willful misconduct of any Seller reasonably believes Indemnitee or the lack of such a provision may result in a material adverse impact on its business operations. If Buyer fails to defend any such claim within a reasonable time after notice thereof, Seller shall be entitled to assume the defense thereof and Buyer shall be bound by the results obtained breach by Seller with respect to such claimor any Seller Indemnitee of its covenants, representations and Buyer shall be liable to Seller for all expenses incurred in such defense and/or in any action to enforce its indemnification rights hereunder, including, without limitation, reasonable attorneys' fees and any settlement payments. 12.2.5 Claims for indemnification arising solely by reason of any misrepresentation or breach or nonfulfillment of any representation, warranty or covenant shall not be payable by Buyer hereunder unless such claims exceed, on a cumulative basis, the sum of $25,000 ("Buyer's Basket Amount"). In the event such claims exceed Buyer's Basket Amount, such claims shall be payable from the first dollar thereof. Notwithstanding anything in this Agreement to the contrary, in no event shall the liability of Buyer to Seller warranties under this Agreement exceed $2,500,000 or in any Seller’s Certificate of Commissioning or (ii) operation of Bloom Systems by a party outside of Buyer’s control or direction (including any Seller Personnel) or by a party taking such action despite Buyer’s reasonable efforts to prevent the aggregatesame.

Indemnification of Seller by Buyer. Buyer hereby agrees to indemnify and hold harmless Seller and its successors ---------------------------------- and assigns shall indemnify and hold all Affiliates of Seller harmless and its shareholders, directors, officers, employees and agents thereof (collectively, the "SELLER INDEMNITEES" and individually, a "SELLER INDEMNITEE") against and in with respect of, and shall reimburse Seller forto: 12.2.1 (a) Any and all lossesLosses directly or indirectly resulting or arising from the operation of the Hosted Business and/or the ownership of the Purchased Assets, liabilitiesthe Assumed Liabilities, the Hired Employees (only with respect to services provided by such employees following the Closing) or from incidents or occurrences relating to such business, assets, liabilities or employees subsequent to the Closing, except to the extent the Seller is obligated to indemnify Buyer therefor. (b) Any and all Losses directly or indirectly resulting or arising from any misrepresentation or breach of warranty on the part of Buyer under this Agreement, the other Transaction Agreements, or damages any certificate, document, agreement, or instrument delivered pursuant hereto or thereto; (c) Any and all Losses directly or indirectly resulting or arising from any untrue representation, breach of warranty, or nonfulfillment non-fulfillment of any covenant or agreement by on the part of Buyer contained herein under this Agreement, the other Transaction Agreements or in any certificate, document, agreement, or instrument delivered to Seller hereunderpursuant hereto or thereto; 12.2.2 Any claims for finder's fees or brokerage or other commissions by any person, firm, or corporation, arising by reason of any services alleged to have been rendered to or at the instance of Buyer with respect to this Agreement or any of the transactions contemplated hereby; 12.2.3 (d) Any and all lossesdemands, liabilitiesclaims, or damages resulting from Buyer's operation or ownership of the System after the Closing Date or relating to obligations undertaken by Buyer pursuant to the Assumption Agreement; and 12.2.4 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, costs and expenses, including, without limitation, reasonable legal fees and expenses, other expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity. If any claim covered by the foregoing indemnity is asserted against Seller by a third party, Seller shall promptly give Buyer notice thereof and give Buyer an opportunity to defend or settle the same with counsel of Buyer's choice and at Buyer's expenseforegoing. The failure indemnification obligations of Buyer hereunder relate to give Buyer prompt notice of any such claim shall not affect Buyer's obligations pursuant to this Section 12.2, except that Seller shall be responsible indemnification for any damages proximately incurred by Buyer as a result of such failure. Seller shall extend its full cooperation in connection with such defense, subject to reimbursement for actual out-of-pocket expenses incurred by Seller as the result all Losses of a request by BuyerSeller Indemnitee, regardless of whether such Loss arises from a third-party claim against such Seller Indemnitee or otherwise. The settlement of any such claim by Seller prior to giving Buyer such opportunity or while Buyer is providing an appropriate defense, without Buyer's prior written consent (which consent shall not be unreasonably withheld or delayed), shall release Buyer from its obligations hereunder with respect to such claim or action so settled. No settlement which fails to contain a provision expressly negating any claim of wrongdoing on the part of Seller shall be entered into on behalf of Seller without its prior written consent. Such consent shall not be unreasonably withheld or delayed, and may only be withheld Notwithstanding anything to the extent Seller reasonably believes the lack of such a provision may result contrary provided elsewhere in a material adverse impact on its business operations. If Buyer fails to defend any such claim within a reasonable time after notice thereof, Seller shall be entitled to assume the defense thereof and Buyer shall be bound by the results obtained by Seller with respect to such claim, and this Agreement: (i) Buyer shall be liable to the Seller Indemnitees for all expenses incurred in such defense and/or in any action amounts payable under this SECTION 11.2 (other than claims based on fraud or intentional misrepresentations by Buyer, as to enforce its indemnification rights hereunder, including, without limitation, reasonable attorneys' fees and any settlement payments. 12.2.5 Claims for indemnification arising solely by reason of any misrepresentation or breach or nonfulfillment of any representation, warranty or covenant which no deductible shall not be payable by Buyer hereunder unless such claims exceed, on a cumulative basis, the sum of $25,000 ("Buyer's Basket Amount"). In the event such claims exceed Buyer's Basket Amount, such claims shall be payable from the first dollar thereof. Notwithstanding anything in this Agreement apply) only to the contrary, extent such amounts in the aggregate exceed $15,000 and in no event shall Buyer be jointly liable to the liability Seller Indemnitees under this SECTION 11.2 (other than claims based on fraud or intentional misrepresentations by Buyer, as to which no limitation shall apply) for amounts which exceed in the aggregate the Purchase Price; (ii) The obligations of Buyer to Seller under this Agreement exceed $2,500,000 to indemnify the Seller Indemnitees shall be of no force or effect with respect to claims under this SECTION 11.2 as to which a Seller Indemnitee has not given Buyer written notice describing the basis for such claim in reasonable detail within twelve (12) months after the aggregateClosing Date.

Indemnification of Seller by Buyer. Buyer agrees to hold harmless, indemnify and defend Seller and its successors ---------------------------------- affiliates, and assigns shall indemnify the directors, officers and hold Seller harmless employees thereof, from and against, and will reimburse such indemnified parties with respect to Claims at any time and from time to time asserted against and in respect or incurred by any such indemnified party insofar as such Claims are based upon: a) any breach or nonfulfillment of, and shall reimburse Seller for: 12.2.1 Any and all lossesor any inaccuracy in, liabilitiesany covenant, representation or damages resulting from any untrue representation, breach of warranty, or nonfulfillment of any covenant or agreement by Buyer warranty contained herein or otherwise made in any certificate, document, writing by or instrument delivered to Seller hereunder; 12.2.2 Any claims for finder's fees or brokerage or other commissions by any person, firm, or corporation, arising by reason of any services alleged to have been rendered to or at the instance on behalf of Buyer in connection with respect to this Agreement or any of the transactions contemplated hereby; 12.2.3 Any and all losses, liabilitiesb) any injury to any person, or damages resulting from Buyer's operation damage to any property, occurring before or ownership of the System after the Closing Date related in any way to the Plant Site that is attributable to Buyer's negligence or willful misconduct or, with respect to a Claim or suit relating to an employee of Seller, is attributable to Buyer's sole negligence or willful misconduct; c) any Claim against Seller or involving any of the Assets that arises from or is based upon any action, event or condition existing or occurring after the Closing Date, excluding Claims attributable to Seller's negligence or willful misconduct; or d) any Claim based upon or relating to obligations undertaken by Buyer pursuant the validation, manufacture, usage, distribution or sale of Buyer's products manufactured at the Plant Site whether prior or after the Closing Date; e) any Claim arising out of or relating to the Assumption Agreement; andemployment or termination of employees of Buyer; 12.2.4 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expensesf) the failure of Buyer to comply with the "bulk transfer" laws of any jurisdiction in connection with the transactions contemplated hereby; g) the failure of Buyer to pay any taxes, including, without limitation, reasonable legal fees and expensesany sales tax resulting from the transfer of the Assets to Buyer, incident or to make any unemployment compensation insurance contribution that was due after the Closing Date; h) the failure of Buyer to comply with any of the foregoing obligations provided for in Sections 10.1 and 10.10 if such failure results in Seller being obligated to pay any severance or incurred in investigating termination pay or attempting provide benefits to avoid the same any Employee or to oppose the imposition thereof, or in enforcing this indemnity. If any claim covered by the foregoing indemnity is asserted against Seller by a third party, Seller shall promptly give Buyer notice thereof and give Buyer an opportunity to defend or settle the same with counsel of Buyer's choice and at Buyer's expense. The failure to give Buyer prompt notice of any such claim shall not affect Buyer's obligations pursuant to this Section 12.2, except that Seller shall be responsible for any damages proximately incurred by Buyer as a result of such failure. Seller shall extend its full cooperation in connection with such defense, subject to reimbursement for actual out-of-pocket expenses incurred by Seller as the result of a request by Buyer. The settlement of any such claim by Seller prior to giving Buyer such opportunity or while Buyer is providing an appropriate defense, without Buyer's prior written consent (which consent shall not be unreasonably withheld or delayed), shall release Buyer from its obligations hereunder with respect to such claim or action so settled. No settlement which fails to contain a provision expressly negating any claim of wrongdoing on the part of Seller shall be entered into on behalf of Seller without its prior written consent. Such consent shall not be unreasonably withheld or delayed, and may only be withheld to the extent Seller reasonably believes the lack of such a provision may result in a material adverse impact on its business operations. If Buyer fails to defend any such claim within a reasonable time after notice thereof, Seller shall be entitled to assume the defense thereof and Buyer shall be bound by the results obtained by Seller with respect to such claim, and Buyer shall be liable to Seller for all expenses incurred in such defense and/or in any action to enforce its indemnification rights hereunder, including, without limitation, reasonable attorneys' fees and any settlement paymentsTransferred Employee. 12.2.5 Claims for indemnification arising solely by reason of any misrepresentation or breach or nonfulfillment of any representation, warranty or covenant shall not be payable by Buyer hereunder unless such claims exceed, on a cumulative basis, the sum of $25,000 ("Buyer's Basket Amount"). In the event such claims exceed Buyer's Basket Amount, such claims shall be payable from the first dollar thereof. Notwithstanding anything in this Agreement to the contrary, in no event shall the liability of Buyer to Seller under this Agreement exceed $2,500,000 in the aggregate.

Indemnification of Seller by Buyer. Buyer and its successors ---------------------------------- and assigns shall indemnify indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller harmless Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a Third Party Claim (other than a claim for a Seller Indemnitee’s breach of any contract to which a Seller Indemnitee is a party) and in respect ofany way relating to, and shall reimburse resulting from or arising out of or in connection with any Third Party Claims against a Seller for: 12.2.1 Any and all lossesIndemnitee to the extent arising out of or in connection with (a) (1) the negligent or intentional acts or omissions of Buyer or its subcontractors, liabilitiesagents or employees or others under Buyer’s control (excluding any act or omission by Seller, any Seller Indemnitee or any Seller Personnel), (2) breach by Buyer of its representations, warranties or obligations under this Agreement (except to the extent caused by any Seller Indemnitee or Seller Personnel), or damages (3) any breach of a Site Lease or Interconnection Agreement, except to the extent relating to, resulting from or arising out of or in connection with any untrue representationact or omission by Seller, breach of warrantyany Seller Indemnitee or any Seller Personnel, or nonfulfillment (b) the operation of any covenant or agreement by Buyer contained herein or in any certificate, document, or instrument delivered to Seller hereunder; 12.2.2 Any claims for finder's fees or brokerage or other commissions New Systems by any person, firm, Person other than Seller or corporation, arising by reason an Affiliate or subcontractor of any services alleged to Seller after such New Systems have been rendered to or at the instance of Buyer with respect to this Agreement or any of the transactions contemplated hereby; 12.2.3 Any and all losses, liabilities, or damages resulting from Buyer's operation or ownership of the System after the Closing Date or relating to obligations undertaken Purchased by Buyer pursuant to the Assumption Agreement; and 12.2.4 Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expenses, including, without limitation, reasonable legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity. If any claim covered by the foregoing indemnity is asserted against Seller by a third party, Seller shall promptly give Buyer notice thereof and give Buyer an opportunity to defend or settle the same with counsel of Buyer's choice and at Buyer's expense. The failure to give Buyer prompt notice of any such claim shall not affect Buyer's obligations pursuant to this Section 12.2, except that Seller shall be responsible for any damages proximately incurred by Buyer as a result of such failure. Seller shall extend its full cooperation in connection with such defense, Agreement (but subject to reimbursement for actual out-of-pocket expenses incurred by Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller as the result of is a request by Buyer. The settlement of any such claim by party); provided that Buyer shall have no obligation to indemnify Seller prior to giving Buyer such opportunity or while Buyer is providing an appropriate defense, without Buyer's prior written consent (which consent shall not be unreasonably withheld or delayed), shall release Buyer from its obligations hereunder with respect to such claim or action so settled. No settlement which fails to contain a provision expressly negating any claim of wrongdoing on the part of Seller shall be entered into on behalf of Seller without its prior written consent. Such consent shall not be unreasonably withheld or delayed, and may only be withheld to the extent caused by or arising out of any (i) negligence, fraud or willful misconduct of any Seller reasonably believes Indemnitee or the lack of such a provision may result in a material adverse impact on its business operations. If Buyer fails to defend any such claim within a reasonable time after notice thereof, Seller shall be entitled to assume the defense thereof and Buyer shall be bound by the results obtained breach by Seller with respect to such claimor any Seller Indemnitee of its covenants, representations and Buyer shall be liable to Seller for all expenses incurred in such defense and/or in any action to enforce its indemnification rights hereunder, including, without limitation, reasonable attorneys' fees and any settlement payments. 12.2.5 Claims for indemnification arising solely by reason of any misrepresentation or breach or nonfulfillment of any representation, warranty or covenant shall not be payable by Buyer hereunder unless such claims exceed, on a cumulative basis, the sum of $25,000 ("Buyer's Basket Amount"). In the event such claims exceed Buyer's Basket Amount, such claims shall be payable from the first dollar thereof. Notwithstanding anything in this Agreement to the contrary, in no event shall the liability of Buyer to Seller warranties under this Agreement exceed $2,500,000 or in any Seller’s Certificate of Commissioning or (ii) operation of Bloom Systems by a party outside of Buyer’s control or direction (including any Seller Personnel) or by a party taking such action despite Buyer’s reasonable efforts to prevent the aggregatesame.