Common use of Indemnification; Set-Off Clause in Contracts

Indemnification; Set-Off. 8.1. Without derogating from the provisions of Section 3 above, Seller agrees to defend, indemnify and hold the Indemnified Parties harmless from, against and in respect of any and all losses, liabilities, damages, claims or expenses (including, without limitation, attorneys' fees) suffered or incurred, directly or indirectly by the Indemnified Parties by reason of, or resulting from the breach of any representation or warranty contained in Section 6 of this Agreement or from the failure to perform any covenant contained in this Agreement or in the Patent Assignment. 8.2. Whenever any claim arises for indemnification under this Agreement or an event which may result in a claim for such indemnification has occurred, the Indemnified Party will promptly notify the Seller of the claim and, when known, the facts constituting the basis for such claim. The Seller shall have the obligation to dispute and defend all such third party claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Seller, and the cost of such defense shall be borne by the Seller, provided that the Indemnified Parties shall have the right to participate in such defense at their own expense, unless the Indemnified Parties require their own attorney due to a conflict of interests, in which case, the expense thereof will be borne by the Seller. The Indemnified Parties shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim at the cost of the Seller. If the Seller fails to take action within thirty (30) days of notice, then the Indemnified Parties shall have the right to pay, compromise or defend any third party claim, such costs to be borne by the Seller. The Indemnified Protected shall also have the right and upon delivery of ten (l0) days advance written notice to such effect to the Seller, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default prior to the assumption of the defense of the third party claim by the Seller, and any expenses incurred by the Indemnified Parties so acting shall be paid by the Seller. The Seller will not settle or compromise any third party claim without the prior written consent of the Indemnified Parties. 8.3. Without derogating from any other right and/or remedy available to the Buyer hereunder or under applicable law, the Buyer shall be entitled to set-off against any amounts otherwise payable by the Buyer to the Seller under this Agreement any amounts to which Buyer is entitled based on a claim for indemnification by the Buyer under this Agreement or the Patent Assignment. Neither the exercise of, nor the failure to exercise, such right of set-off will constitute an election of remedies or limit the Buyer in any manner in the enforcement of any other remedies that may be available to it.

Indemnification; Set-Off. 8.1. Without derogating from the provisions of Section 3 above, Seller agrees to defend, indemnify and hold the Indemnified Parties harmless from, against and in respect of any and all losses, liabilities, damages, claims or expenses (including, without limitation, attorneys' fees) suffered or incurred, directly or indirectly by the Indemnified Parties by reason of, or resulting from the breach of any representation or warranty contained in Section 6 of this Agreement or from the failure to perform any covenant contained in this Agreement or in the Patent Assignment. 8.2. Whenever any claim arises for indemnification under this Agreement or an event which may result in a claim for such indemnification has occurred, the Indemnified Party will promptly notify the Seller of the claim and, when known, the facts constituting the basis for such claim. The Seller shall have the obligation to dispute and defend all such third party claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Seller, and the cost of such defense shall be borne by the Seller, provided that the Indemnified Parties shall have the right to participate in such defense at their own expense, unless the Indemnified Parties require their own attorney due to a conflict of interests, in which case, the expense thereof will be borne by the Seller. The Indemnified Parties shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim at the cost of the Seller. If the Seller fails to take action within thirty (30) days of notice, then the Indemnified Parties shall have the right to pay, compromise or defend any third party claim, such costs to be borne by the Seller. The Indemnified Protected shall also have the right and upon delivery of ten (l010) days advance written notice to such effect to the Seller, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default prior to the assumption of the defense of the third party claim by the Seller, and any expenses incurred by the Indemnified Parties so acting shall shal1 be paid by the Seller. The Seller will not settle or compromise any third party claim without the prior written consent of the Indemnified Parties. 8.3. Without derogating from any other right and/or remedy available to the Buyer hereunder or under applicable law, the Buyer shall be entitled to set-off against any amounts otherwise payable by the Buyer to the Seller under this Agreement any amounts to which Buyer is entitled based on a claim for indemnification by the Buyer under this Agreement or the Patent Assignment. Neither the exercise of, nor the failure to exercise, such right of set-off will constitute an election of remedies or limit the Buyer in any manner in the enforcement of any other remedies that may be available to it.

Indemnification; Set-Off. 8.16.1. Without derogating from the provisions of Section 3 above, Seller agrees to defend, indemnify and hold the Indemnified Parties harmless from, against and in respect of any and all losses, liabilities, damages, claims or expenses (including, without limitation, attorneys' fees) suffered or incurred, directly or indirectly by the Indemnified Parties by reason of, or resulting from the breach of any representation or warranty contained in Section 6 of this Agreement or from the failure to perform any covenant contained in this Agreement or in the Patent Assignment. 8.26.2. Whenever any claim arises for indemnification under this Agreement or an event which may result in a claim for such indemnification has occurred, the Indemnified Party will promptly notify the Seller of the claim and, when known, the facts constituting the basis for such claim. The Seller shall have the obligation to dispute and defend all such third party claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Seller, and the cost of such defense shall be borne by the Seller, provided that the Indemnified Parties shall have the right to participate in such defense at their own expense, unless the Indemnified Parties require their own attorney due to a conflict of interests, in which case, the expense thereof will be borne by the Seller. The Indemnified Parties shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim at the cost of the Seller. If the Seller fails to take action within thirty (30) days of notice, then the Indemnified Parties shall have the right to pay, compromise or defend any third party claim, such costs to be borne by the Seller. The Indemnified Protected shall also have the right and upon delivery of ten (l010) days advance written notice to such effect to the Seller, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default prior to the assumption of the defense of the third party claim by the Seller, and any expenses incurred by the Indemnified Parties so acting shall be paid by the Seller. The Seller will not settle or compromise any third party claim without the prior written consent of the Indemnified Parties. 8.36.3. Without derogating from any other right and/or remedy available to the Buyer hereunder or under applicable law, the Buyer shall be entitled to set-off against any amounts otherwise payable by the Buyer to the Seller under this Agreement any amounts to which Buyer is entitled based on a claim for indemnification by the Buyer under this Agreement or the Patent Assignment. Neither the exercise of, nor the failure to exercise, such right of set-off will constitute an election of remedies or limit the Buyer in any manner in the enforcement of any other remedies that may be available to it.

Indemnification; Set-Off. 8.1. Without derogating from (i) From and after the provisions date of Section 3 abovethis Agreement, Seller agrees to defendthe Shareholders will, jointly and severally, indemnify and hold harmless PHNS and each director, officer, employee, agent, representative or counsel of PHNS (collectively, the "PHNS Indemnified Parties harmless fromParties") against all costs and expenses (including reasonable attorneys' fees), against and in respect of any and all judgments, fines, losses, liabilitiesclaims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), arising out of or in connection with the material breach of any representation, warranty, covenant or agreement of the Shareholders contained herein, provided, that the foregoing indemnity will not apply to any act or failure to act which a court of competent jurisdiction determines in an order or decision not subject to appeal constituted gross negligence or willful misconduct on the part of such PHNS Indemnified Party; and, provided, further, that the PHNS Indemnified Parties shall only be entitled to indemnification hereunder with respect to claims which aggregate $50,000 or more (in which event such PHNS Indemnified Parties shall be entitled to claim the full amount of such liability and not simply the excess); and, provided, further, that in no event will the PHNS Indemnified Parties be entitled to indemnification hereunder for claims in excess of $1,000,000, individually or in the aggregate. (ii) From and after the date of this Agreement, PHNS will indemnify and hold harmless the Shareholders and their respective agents, representatives or counsel (collectively, the "Shareholder Indemnified Parties") against all costs and expenses (including, without limitation, including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), arising out of or in connection with the material breach of any representation, warranty, covenant or agreement of PHNS contained herein, provided, that the foregoing indemnity will not apply to any act or failure to act which a court of competent jurisdiction determines in an order or decision not subject to appeal constituted gross negligence or willful misconduct on the part of such Shareholder Indemnified Party; and, provided, further, that the Shareholder Indemnified Parties shall only be entitled to indemnification hereunder with respect to claims which aggregate $50,000 or more (in which event such Shareholder Indemnified Parties shall be entitled to claim the full amount of such liability and not simply the excess); and, provided, further, that in no event will the Shareholder Indemnified Parties be entitled to indemnification hereunder for claims in excess of $1,000,000, individually or in the aggregate. (iii) suffered Without limiting any of the foregoing indemnity obligations of Sections 13(g)(i) and 13(g)(ii), in the event of any claim, action, suit, proceeding or incurredinvestigation (a "Claim") is brought against a PHNS Indemnified Party or a Shareholder Indemnified Party (the "Indemnified Party") (whether arising before or after the date hereof), directly (A) the party against whom indemnification is sought pursuant to the foregoing Sections 13(g)(i) or indirectly (ii), as the case may be, (the "Indemnifying Party"), shall assume and direct all aspects of the defense of such Claim, including the settlement thereof, (B) the Indemnifying Party shall retain and direct, and shall pay the reasonable fees and expenses of counsel reasonably satisfactory to the Indemnified Party, promptly after statements therefor are received, and (C) the Indemnified Party will cooperate in the defense of any such Claim. The Indemnified Party shall have a right to participate in (but not control) the defense of any such Claim with its own counsel at its own expense. The Indemnifying Party shall not be liable for any settlement effected without its prior written consent, which shall not be unreasonably withheld or delayed. The Indemnifying Party will not settle any such matter unless (x) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (y) the terms of the settlement provide that the Indemnified Party will have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against the Indemnified Party with respect to such matter. Any Indemnified Party wishing to claim indemnification under this Section 13(g), upon learning of any Claim, shall notify the Indemnifying Party; provided, that failure to provide notice of a Claim shall not relieve a party of its indemnity obligations under this Section 13(g) unless such failure prejudices such party. No Indemnifying Party will be obligated pursuant to this Section 13(g) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action except to the extent, as determined by counsel to the Indemnified Parties, that there may be one or more legal defenses available to one Indemnified Party that are different from or in addition to those available to the other Indemnified Parties that would, in the judgment of such counsel, prohibit such counsel from representing all Indemnified Parties under the rules of professional ethics, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties by reason of, or resulting from at the breach of any representation or warranty contained in Section 6 of this Agreement or from the failure to perform any covenant contained in this Agreement or in the Patent Assignment. 8.2. Whenever any claim arises for indemnification under this Agreement or an event which may result in a claim for such indemnification has occurred, the Indemnified Party will promptly notify the Seller expense of the claim and, when known, the facts constituting the basis for such claim. The Seller shall have the obligation to dispute and defend all such third party claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Seller, and the cost of such defense shall be borne by the Seller, provided that the Indemnified Parties shall have the right to participate in such defense at their own expense, unless the Indemnified Parties require their own attorney due to a conflict of interests, in which case, the expense thereof will be borne by the Seller. The Indemnified Parties shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim at the cost of the Seller. If the Seller fails to take action within thirty (30) days of notice, then the Indemnified Parties shall have the right to pay, compromise or defend any third party claim, such costs to be borne by the Seller. The Indemnified Protected shall also have the right and upon delivery of ten (l0) days advance written notice to such effect to the Seller, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default prior to the assumption of the defense of the third party claim by the Seller, and any expenses incurred by the Indemnified Parties so acting shall be paid by the Seller. The Seller will not settle or compromise any third party claim without the prior written consent of the Indemnified Indemnifying Parties. 8.3. Without derogating from any other right and/or remedy available to the Buyer hereunder or under applicable law, the Buyer (iv) The Shareholders hereby agree that PHNS shall be entitled to set-off against any amounts otherwise payable by the Buyer to the Seller under this Agreement any amounts to which Buyer is entitled based on a claim for indemnification by the Buyer under this Agreement or the Patent Assignment. Neither the exercise of, nor the failure to exercise, such right of set-off will constitute an election (without duplication) against any PHNS Shares subject to the vesting provisions of remedies or limit Annex 2 and any Earn-Out Payments otherwise required to be distributed pursuant to the Buyer in any manner provisions of Annex 3 in the enforcement event that the Shareholders are required to indemnify PHNS pursuant to the provisions of this Section 13(g). Any amounts owing pursuant to the right of set-off shall be applied, first to PHNS Shares payable as Earn-Out Payments (to the extent earned), second to cash payable as Earn-Out Payments (to the extent earned) and third to PHNS Shares subject to the vesting provisions of Annex 2. PHNS shall give notice to the Shareholders of any other remedies exercise of its rights of set-off hereunder. Any PHNS Shares subject to the set-off rights granted hereunder shall be applied using the Fair Market Value of the PHNS Shares on the date of original issuance of such PHNS Shares (in the case of PHNS Shares subject to Vesting Conditions) or the date such PHNS Shares would have otherwise been issued (in the case of PHNS Shares that may be available to itwould have been issued as Earn-Out Payments).