Common use of Limitations on Indemnifying Party Control Clause in Contracts

Limitations on Indemnifying Party Control. In the event the Indemnifying Party properly assumes the defense of the Third Party Claim in accordance with Section 9.9(a)(i), (i) the Indemnifying Party shall retain counsel reasonably acceptable to the Indemnified Party and use commercially reasonable efforts to defend such Third Party Claim actively and diligently and (ii) the Indemnified Party may retain separate counsel of its own choice and participate in the defense of the Third Party Claim, at its own expense, unless the Indemnified Party reasonably determines that there is a material conflict of interest between or among the Indemnified Party and the Indemnifying Party with respect to such Third Party Claim, in which case, the fees, costs and expenses of such counsel shall be borne by the Indemnifying Party. The Indemnifying Party shall not permit a default or consent to the entry of any judgment with respect to the matter or enter into any settlement or compromise with respect to the matter if (A) such default, entry, settlement or compromise involves any finding or admission of any violation of Law or otherwise contains or requires any admission of guilt, fault or Liability of any Indemnified Party or any of its Affiliates, (B) does not cause each Indemnified Party to be fully and unconditionally released from all Liability with respect to such Third Party Claim, or (C) imposes any equitable remedies or non-monetary obligations on the Indemnified Party. Any default or entry of any judgement or settlement or compromise that does not comply with this Section 9.9(a)(i) shall not be determinative of the amount of Damages with respect to any related claims for indemnification pursuant to this Article IX (Indemnification). If the Indemnifying Party assumes the defense of any Third Party Claim in accordance with this Section 9.9(a)(i), it will be deemed conclusively established for purposes of this Agreement that all claims asserted or alleged in such proceeding are within the scope of and are subject to the indemnification provisions set forth in this Article IX (Indemnification), and the Indemnifying Party shall not be permitted to contest the applicability of this Article IX (Indemnification) to such claims.

Limitations on Indemnifying Party Control. In the event that the Indemnifying Party properly or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties), as applicable, assumes the defense of the Third Party Claim in accordance with Section 9.9(a)(i)8.4(b) above, (i) the Indemnifying Party shall retain counsel reasonably acceptable to the Indemnified Party and use commercially reasonable efforts to defend such Third Party Claim actively and diligently and (ii) the Indemnified Party may retain separate counsel of its own choice and participate in the defense of the Third Party Claim, but the fees and expenses of such counsel shall be at its own expensethe expense of the Indemnified Party, unless the Indemnified Party shall reasonably determines determine that there is a material conflict of interest between or among the Indemnified Party Party, on the one hand, and the Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties), as applicable, on the other hand, with respect to such Third Party Claim, in which case, case the fees, costs reasonable fees and expenses of such counsel shall will be borne by the Indemnifying Party. The Indemnifying Indemnified Party shall will not permit a default or consent to the entry of any judgment with respect to the matter or enter into any settlement or compromise with respect to the matter if (A) such default, entry, settlement or compromise involves any finding or admission of any violation of Law or otherwise contains or requires any admission of guilt, fault or Liability of any Indemnified Party or any of its Affiliates, (B) does not cause each Indemnified Party to be fully and unconditionally released from all Liability with respect to such Third Party ClaimClaim without the prior written consent of the of the Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties), or as applicable (C) imposes any equitable remedies or non-monetary obligations on the Indemnified Party. Any default or entry of any judgement or settlement or compromise that does not comply with this Section 9.9(a)(i) which consent shall not be determinative of the amount of Damages with respect to any related claims for indemnification pursuant to this Article IX (Indemnificationunreasonably withheld or delayed). If The Indemnified Party named in such Third Party Claim will use commercially reasonable efforts to cooperate in the defense thereof and will provide reasonable access to documents, assets, properties, books, and records reasonably requested by the Indemnifying Party assumes or the defense Representative (on behalf of any each Seller Indemnifying Party if such persons are the Indemnifying Parties), as applicable, and material to the Third Party Claim in accordance with this Section 9.9(a)(i), it will be deemed conclusively established for purposes of this Agreement that all claims asserted or alleged in such proceeding are within the scope of and are subject to the indemnification provisions set forth in this Article IX (Indemnification)Claim, and will make available all officers, directors, and employees reasonably requested by the Indemnifying Party shall not be permitted to contest the applicability of this Article IX (Indemnification) to such claimsor Representative, as applicable, for investigation, depositions, and trial.

Limitations on Indemnifying Party Control. In the event that the Indemnifying Party properly or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties), as applicable, assumes the defense of the Third Party Claim in accordance with Section 9.9(a)(i)8.5(b) above, (i) the Indemnifying Party shall retain counsel reasonably acceptable to the Indemnified Party and use commercially reasonable efforts to defend such Third Party Claim actively and diligently and (ii) the Indemnified Party may retain separate counsel of its own choice and participate in the defense of the Third Party Claim, but the fees and expenses of such counsel shall be at its own expensethe expense of the Indemnified Party (it being agreed that the Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such Persons are the Indemnifying Parties), as applicable, will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such Persons are the Indemnifying Parties), as applicable, effectively assumes control of such defense), unless the Indemnified Party shall reasonably determines determine that there is a material conflict of interest that cannot be waived between or among the Indemnified Party and the Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such Persons are the Indemnifying Parties), as applicable, with respect to such Third Party Claim, in which case, case the fees, costs reasonable fees and expenses of such counsel shall will be borne by the Indemnifying Party. The Indemnifying Party shall will not permit a default or consent be entitled to assume control of the entry defense of any judgment with respect to such claim, and will pay the matter or enter into any settlement or compromise with respect to reasonable fees and expenses of legal counsel retained by the matter Indemnified Party, if (Ai) such default, entry, settlement or compromise involves any finding or admission of any violation of Law or otherwise contains or requires any admission of guilt, fault or Liability of any the Indemnified Party reasonably believes that an adverse determination of such Third Party Claim could be materially detrimental to or any of materially injure the Indemnified Party’s (or its Affiliates’) reputation, business or future business prospects, (Bii) does not cause each the Indemnified Party to be fully reasonably believes that a conflict of interest exists or could arise which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and unconditionally released from all Liability with respect to the Indemnifying Party in such Third Party Claim, other than a conflict which may exist due to the underlying nature of the duty to indemnify, (iii) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend such claim, (Civ) imposes any equitable remedies or the Third Party Claim seeks non-monetary obligations on relief or involves criminal or quasi criminal allegations, (v) the Third Party Claim involves a Governmental Authority or a customer or former customer of the Company or (vi) the Third Party Claim involves potential exposure (whether monetary or otherwise, and whether in such Third Party Claim or as a result thereof) arising out of such Third Party Claim to the Indemnified Party. Any default or entry of any judgement or settlement or compromise that does not comply with this Section 9.9(a)(i) shall not be determinative Party in excess of the amount Indemnifying Party’s expected exposure (whether monetary or otherwise, and whether in such Third Party Claim or as a result thereof) arising out of Damages with respect to any related such Third Party Claim after taking into account all of the claims for and causes of action (and underlying facts and circumstances) upon which such Third Party Claim is premised and the indemnification pursuant to this Article IX (Indemnification). If obligations of the Indemnifying Party assumes and limits thereon hereunder. Additionally, subject to the limitations set forth herein the Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties) may control the defense of any Third Party Claim in accordance with this Section 9.9(a)(i)action for which indemnification is sought, it will be deemed conclusively established for purposes of this Agreement provided that all claims asserted or alleged in such proceeding are within the scope of and are subject to the indemnification provisions set forth in this Article IX (Indemnification), and the Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties) agrees to comply with the following requirements in connection with the conduct of the defense: (a) Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties) shall not use all reasonable efforts to promptly provide the Indemnified Parties with copies of all discovery requests or subpoenas as soon as they are available to the Indemnifying Parties; (b) Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties) shall provide the Indemnified Parties with copies of all pleadings prior to their filing and the Indemnified Parties shall be permitted given the opportunity to contest provide comments to any such pleadings; (c) Indemnifying Party or the applicability Representative (on behalf of this Article IX each Seller Indemnifying Party if such persons are the Indemnifying Parties) shall choose defense counsel that is reasonably satisfactory to the Indemnified Parties; (Indemnificationd) Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties) will keep the Indemnified Parties or its agents informed of all material information pertaining to a claim; (e) Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such claimspersons are the Indemnifying Parties) shall inform the Indemnified Parties of the date of any mediation, arbitration, trial or settlement conference as soon as reasonably practicable after it receives such information; and (f) Indemnifying Party or the Representative (on behalf of each Seller Indemnifying Party if such persons are the Indemnifying Parties) shall inform the Indemnified Parties of the outcome of any mediation, arbitration, motion, trial or settlement or any other matter from which appeal rights could arise.

Limitations on Indemnifying Party Control. In the event that Buyer (if the Buyer Indemnifying Parties are the Indemnifying Party properly Party) or the Seller (if the Seller Parties are the Indemnifying Party), as applicable, assumes the defense of the Third Party Claim in accordance with Section 9.9(a)(i)8.5(b) above, the Seller (i) on behalf of the Indemnifying Party shall retain counsel reasonably acceptable to Seller Indemnified Parties if such Persons are the Indemnified Party and use commercially reasonable efforts to defend Party) or Buyer (on behalf of the Buyer Indemnified Parties if such Third Party Claim actively and diligently and (ii) Persons are the Indemnified Party Party) may retain separate counsel of its own choice and participate in the defense of the Third Party Claim, at its own expense, unless . The Seller (on behalf of the Seller Indemnified Parties if such Persons are the Indemnified Party reasonably determines that there is a material conflict Party) or Buyer (on behalf of interest between or among the Buyer Indemnified Parties if such Persons are the Indemnified Party and the Indemnifying Party with respect to such Third Party Claim, in which case, the fees, costs and expenses of such counsel shall be borne by the Indemnifying Party. The Indemnifying Party shall ) will not permit a default or consent to the entry of any judgment with respect to the matter or enter into any settlement or compromise with respect to the matter if (A) such default, entry, settlement or compromise involves any finding or admission of any violation of Law or otherwise contains or requires any admission of guilt, fault or Liability of any Indemnified Party or any of its Affiliates, (B) does not cause each Indemnified Party to be fully and unconditionally released from all Liability with respect to such Third Party ClaimClaim without the prior written consent of Buyer (if the Buyer Indemnifying Parties are the Indemnifying Party) or the Seller (if the Seller Parties are the Indemnifying Party), or (C) imposes any equitable remedies or non-monetary obligations on the Indemnified Party. Any default or entry of any judgement or settlement or compromise that does not comply with this Section 9.9(a)(i) as applicable, which consent shall not be determinative of the amount of Damages with respect to any related claims for indemnification pursuant to this Article IX (Indemnification)unreasonably withheld or delayed. If the Indemnifying The Indemnified Party assumes the defense of any named in such Third Party Claim will, and will cause its Affiliates to, assist and cooperate in accordance with this Section 9.9(a)(ithe defense thereof and will provide reasonable access to documents, assets, properties, books, and records reasonably requested by Buyer (if the Buyer Indemnifying Parties are the Indemnifying Party) or the Seller (if the Seller Parties are the Indemnifying Party), it as applicable, and will be deemed conclusively established for purposes of this Agreement that make available all claims asserted officers, directors, and employees reasonably requested by Xxxxx (if the Buyer Indemnifying Parties are the Indemnifying Party) or alleged in such proceeding the Seller (if the Seller Parties are within the scope of and are subject to the indemnification provisions set forth in this Article IX (IndemnificationIndemnifying Party), as applicable, for investigation, depositions, and trial, in each case, at the Indemnifying Party’s cost and expense; provided, that no Indemnified Party shall not be permitted required to contest provide cooperation or furnish any records or other information that would (x) jeopardize the applicability attorney-client, work product or similar privilege of this Article IX the Person in possession or control of such records or information or (Indemnificationy) to contravene any confidentiality agreement, nondisclosure agreement or similar obligation of the Person in possession or control of such claimsrecords or information.

Limitations on Indemnifying Party Control. In the event that the Indemnifying Party properly assumes the defense of the Third Party Claim in accordance with Section 9.9(a)(i)8.5(b) above, (i) the Indemnifying Party shall retain counsel reasonably acceptable to the Indemnified Party and use commercially reasonable efforts to defend such Third Party Claim actively and diligently and (ii) the Indemnified Party may retain separate counsel of its own choice and participate in the defense of the Third Party Claim, but the fees and expenses of such counsel shall be at its own expensethe expense of the Indemnified Party expense (it being agreed that the Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense), unless the Indemnified Party shall reasonably determines determine that there is a material conflict of interest between or among the Indemnified Party and the Indemnifying Party with respect to such Third Party Claim, in which case, case the fees, costs reasonable fees and expenses of such counsel shall will be borne by the Indemnifying Party. The Indemnifying Party shall will not permit a default or consent be entitled to assume control of the entry defense of any judgment with respect to such claim, and will pay the matter or enter into any settlement or compromise with respect to reasonable fees and expenses of legal counsel retained by the matter Indemnified Party, if (Ai) such default, entry, settlement or compromise involves any finding or admission of any violation of Law or otherwise contains or requires any admission of guilt, fault or Liability of any the Indemnified Party reasonably believes that an adverse determination of such Third Party Claim could be materially detrimental to or any of materially injure the Indemnified Party’s (or its Affiliates’) reputation or future business prospects, (Bii) does not cause each the Indemnified Party to be fully reasonably believes that a conflict of interest exists or could arise which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and unconditionally released from all Liability with respect to the Indemnifying Party in such Third Party Claim, other than a conflict which may exist due to the underlying nature of the duty to indemnify; (iii) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend such claim; (Civ) imposes any equitable remedies or the Third Party Claim seeks non-monetary relief or involves criminal or quasi criminal allegations or (v) involves expected exposure (whether monetary or otherwise, and whether in such Third Party Claim or as a result thereof) arising out of such Third Party Claim to the Indemnified Party in excess of the Indemnifying Party’s expected exposure (whether monetary or otherwise, and whether in such Third Party Claim or as a result thereof) arising out of such Third Party Claim after taking into account all of the claims and causes of action (and underlying facts and circumstances) upon which such Third Party Claim is premised and the indemnification obligations on of the Indemnifying Party and limits thereon hereunder (as determined in good faith at the outset of such claim by mutual consultation and negotiation between the Indemnifying Party and the Indemnified Party. Any default or entry of any judgement or settlement or compromise that does not comply with this Section 9.9(a)(i) shall not be determinative of the amount of Damages with respect to any related claims for indemnification pursuant to this Article IX (Indemnification). If the Indemnifying Party assumes the defense of any Third Party Claim in accordance with this Section 9.9(a)(i), it will be deemed conclusively established for purposes of this Agreement that all claims asserted or alleged in such proceeding are within the scope of and are subject to the indemnification provisions set forth in this Article IX (Indemnification), and the Indemnifying Party shall not be permitted to contest the applicability of this Article IX (Indemnification) to such claims.