Common use of Notice and Defense Clause in Contracts

Notice and Defense. The Party to be indemnified (Indemnitee) shall give the Party from whom indemnification is sought (Indemnitor) prompt written notice of any Claim for which indemnification is sought. Failure to give notice shall not affect the Indemnitor’s duty or obligations under this except to the extent the Indemnitor is prejudiced thereby. The Indemnitor may undertake the defense of any third Party claim by representatives chosen by it. If the Indemnitor undertakes the defense of a Claim, then the Indemnitor shall be deemed to accept that it has an indemnification obligation under this Paragraph 8 with respect to such Claim. The Indemnitee shall make available to the Indemnitor or its representatives all records and other materials required by them and in the possession or under the control of the Indemnitee, for the use of the Indemnitor and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. If there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a result of money damages or other money payments, (i) the Indemnitee shall have the right to defend, compromise or settle such Claim and (ii) the Indemnitor shall not, without the written consent of the Indemnitee, settle or compromise any Claim which does not include as an unconditional term thereof the giving by the claimant to the Indemnitee of a release from all liability in respect of such Claim.

Notice and Defense. The Party Within a reasonable period of time after a Person to be indemnified (Indemniteewhether one or more, the "Indemnified Party") shall give receives actual notice of any Claim covered by Section 4.01 or 4.02, as the case may be, the Indemnified Party shall, if a Claim in respect thereof is to be made pursuant to Section 4.01 or 4.02, as the case may be, notify the Person from whom indemnification is sought (Indemnitorthe "Indemnifying Party") prompt written notice in writing of any Claim for which indemnification is sought. Failure such Claim; provided however, that the failure to give notice so notify the Indemnifying Party shall not affect relieve the Indemnitor’s duty or obligations under this Indemnifying Party from any Liability which it may have to the Indemnified Party, except to the extent of material detriment suffered by the Indemnitor Indemnifying Party as a result of such failure. In the event that a Claim, Liability or Loss arises out of or results from matters with respect to third parties, the Indemnifying Party will undertake the defense thereof by representatives chosen by it which are reasonably acceptable to the Indemnified Party; provided, however, that if, in the Indemnified Party's reasonable judgment, a conflict of interest exists between such Indemnified Party and such Indemnifying Party in respect of such Claim, such Indemnified Party shall be entitled to separate counsel at the expense of the Indemnifying Party. So long as the Indemnifying Party is prejudiced therebydefending any such Claim actively and in good faith, the Indemnified Party shall not settle such Claim. The Indemnitor may undertake Each of the Indemnifying Party and the Indemnified Party shall be entitled to consult with each other, to the extent he or it reasonably requests, in respect of the defense of such Claim and shall cooperate in the defense of any third Party claim by representatives chosen by it. If the Indemnitor undertakes the defense of a such Claim, then the Indemnitor shall be deemed to accept that it has an indemnification obligation under this Paragraph 8 with respect to such Claim. The Indemnitee shall make available to the Indemnitor including making his or its representatives all officers, directors, employees and books and records and other materials required by them and available for use in the possession or under the control of the Indemnitee, for the use of the Indemnitor and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in take those actions reasonably within his or its power which are reasonably necessary to preserve any legal defenses to such defense. If there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a result of money damages or other money payments, (i) the Indemnitee shall have the right to defend, compromise or settle such Claim and (ii) the Indemnitor shall not, without the written consent of the Indemnitee, settle or compromise any Claim which does not include as an unconditional term thereof the giving by the claimant to the Indemnitee of a release from all liability in respect of such Claimmatters.

Notice and Defense. The Party to be indemnified Any party or parties seeking indemnification under ------------------ this Article 8 (collectively, the "Indemnitee") shall give the Party from whom shall, on each occasion that indemnification is sought (Indemnitor) sought, give prompt written notice within the prescribed survival period for such indemnification, of any Claim for which claim, suit or demand that the Indemnitee believes will or may give rise to indemnification hereunder to BUYER, on behalf of all BUYER's Indemnitees, on the one hand, or to SELLER, on behalf of all SELLER's Indemnitees, on the other hand (the person to whom such notice of claim is soughtgiven being referred to herein as the "Indemnitor"). Failure to give notice shall not affect the Indemnitor’s duty or obligations under this except to the extent the Indemnitor is prejudiced thereby. The Indemnitor may undertake the defense of any third Party claim by representatives chosen by it. If the Indemnitor undertakes the defense of a ClaimExcept as hereinafter provided, then the Indemnitor shall be deemed obligated to accept that it has an indemnification obligation under this Paragraph 8 defend and to direct the defense against such claim, suit or demand, in its name or in the name of the Indemnitee at the Indemnitor's expense and with counsel of the Indemnitor's own choosing and, so long as the Indemnitor is conducting such defense, the Indemnitee shall not without the Indemnitor's written consent settle or compromise or by affirmative action extend the statue of limitations with respect to such Claim. The Indemnitee shall make available to to, and the Indemnitor or its representatives all records and other materials required by them and in the possession or under the control of the Indemnitee, for the use of the Indemnitor and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. If there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a result of money damages or other money payments, (i) the Indemnitee shall have the right to defendsettle or compromise, compromise any such claim, suit or settle such Claim and (ii) demand; provided, however, that the -------- ------- Indemnitor shall not, without the Indemnitee's written consent of the Indemniteeconsent, settle or compromise any Claim which claim or consent to any entry of judgment that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such Claimclaim, in form and substance reasonably satisfactory to the Indemnitee. The Indemnitee shall, at the Indemnitor's expense, cooperate in the defense of any such claim, suit or demand. If the Indemnitor, within a reasonable time after notice of a claim, fails to defend the Indemnitee, the Indemnitee shall be entitled to undertake the defense of, and to compromise or settle such claim at the expense of and for the account and risk of the Indemnitor, utilizing counsel of the Indemnitee's own choosing. No right or remedy conferred in this Article 8 is intended to be exclusive of any right or remedy available, now or hereafter, at law or in equity or otherwise, to the parties hereto.

Notice and Defense. The Party If Buyer or Seller is seeking indemnification (the party seeking indemnification to be indemnified referred to as the "INDEMNIFIED PARTY") and desires to make a claim against the other party for indemnification (Indemniteethe "INDEMNIFYING PARTY") shall give under this Article 8, the Indemnified Party from whom indemnification is sought (Indemnitor) prompt written shall, within 30 days after the Indemnified Party becomes aware of a claim by notice or knowledge, notify the Indemnifying Party in writing of any Claim for claim or demand as to which indemnification the Indemnified Party is sought. Failure entitled to give notice shall not affect claim indemnification, the Indemnitor’s duty or obligations section under this except Agreement with respect to which such claim is being made and, to the extent known, the Indemnitor amount and circumstances surrounding such claim. In the event the claim is prejudiced thereby. The Indemnitor may undertake the defense of any a third party claim against an Indemnified Party or involves a claim by representatives chosen by it. If or liability involving a governmental authority, the Indemnitor undertakes the defense of a Claim, then the Indemnitor shall be deemed to accept that it has an indemnification obligation under this Paragraph 8 with respect to such Claim. The Indemnitee shall make available to the Indemnitor or its representatives all records and other materials required by them and in the possession or under the control of the Indemnitee, for the use of the Indemnitor and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. If there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a result of money damages or other money payments, (i) the Indemnitee Indemnifying Party shall have the right to defendemploy counsel of its choice to defend any such claim or demand; provided, however, that (i) the Indemnified Party is kept fully informed of all developments and is furnished copies of all relevant papers; (ii) the Indemnifying Party diligently prosecutes the defense; and (iii) the Indemnified Party shall have the right to participate, at its own undertaking and through counsel selected by it, in the defense of any such claim. If the conditions of the foregoing proviso are not met, or if the Indemnifying Party chooses not to control the defense, the Indemnified Party shall assume and control the defense of such third party claim or suit at the expense of the Indemnifying Party. The Indemnifying Party, or, if the conditions to the foregoing proviso are not met, the Indemnified Party, shall have the right to pay, compromise or settle any such Claim and (ii) third party claim with the Indemnitor shall not, without the written consent of the IndemniteeIndemnifying Party, settle or compromise any Claim which does consent shall not include as an unconditional term thereof the giving by the claimant to the Indemnitee of a release from all liability in respect of such Claimbe unreasonably withheld.

Notice and Defense. The Party Any person entitled to be indemnified indemnification hereunder will: (Indemniteei) shall give the Party from whom indemnification is sought (Indemnitor) prompt written notice to the indemnifying party of any Claim for claim with respect to which indemnification is sought. Failure it seeks indemnification, and (ii) unless in the reasonable opinion of such indemnified party's counsel a conflict of interest between such indemnified and indemnifying parties may exist with respect to give notice shall not affect the Indemnitor’s duty or obligations under this except such claim, permit such indemnifying party to the extent the Indemnitor is prejudiced thereby. The Indemnitor may undertake assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. The failure to give timely notice will not relieve the receiving party of any third Party claim by representatives chosen by itobligation unless such delay unduly prejudices such party's ability to defend such claim. If no event shall the Indemnitor undertakes indemnifying party be subject to any liability for any settlement or omission made by the indemnified party without its consent (but such consent will not be unreasonably withheld). In no event shall an indemnified party be subject to any liability for any settlement or omission made by the indemnifying party without its consent (but such consent will not be unreasonably withheld) unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. An indemnifying party who is not entitled to, or elects not to, assume the defense of a Claim, then claim will not be obligated to pay the Indemnitor shall be deemed to accept that it has an indemnification obligation under this Paragraph 8 fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such Claim. The Indemnitee shall make available to the Indemnitor or its representatives all records and other materials required by them and claim, unless in the possession or under the control reasonable judgment of the Indemnitee, for the use any indemnified party a conflict of the Indemnitor interest may exist between such indemnified party and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. If there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a result of money damages or other money payments, (i) the Indemnitee shall have the right to defend, compromise or settle such Claim and (ii) the Indemnitor shall not, without the written consent of the Indemnitee, settle or compromise any Claim which does not include as an unconditional term thereof the giving by the claimant to the Indemnitee of a release from all liability in respect of such Claimindemnified parties with respect to such claim.

Notice and Defense. The Acquiror Indemnified Party to be indemnified (Indemnitee) shall will give the Party from whom indemnification is sought other party or parties (Indemnitorwhether one or more, the "Indemnifying Party") prompt written notice (including all documents and other nonprivileged information in the Acquiror Indemnified Party's possession related thereto) of any such Third Party Claim containing a reasonable description of the nature of the Third Party Claim, an estimate of the amount of damages attributable thereto to the extent determinable and the basis of the Acquiror Indemnified Party's request for which indemnification is soughtunder this Agreement, and the Indemnifying Party may undertake the defense thereof by representatives chosen by it upon written notice to the Acquiror Indemnified Party provided within 20 days of receiving notice of such Third Party Claim (or sooner if the nature of the Third Party Claim so requires). Failure of the Acquiror Indemnified Party to give such notice shall not affect the Indemnitor’s Indemnifying Party's duty or obligations under this Article VIII, except to the extent the Indemnitor Indemnifying Party is materially prejudiced thereby. The Indemnitor may undertake the defense of any third Acquiror Indemnified Party claim by representatives chosen by it. If the Indemnitor undertakes the defense of a Claim, then the Indemnitor shall be deemed to accept that it has an indemnification obligation under this Paragraph 8 with respect to such Claim. The Indemnitee shall make available to the Indemnitor Indemnifying Party or its representatives all records and other materials required by them the Indemnifying Party and in the possession or under the control of the IndemniteeAcquiror Indemnified Party, for the use of the Indemnitor Indemnifying Party and its representatives in defending any such Claimclaim, and shall in other respects give reasonable and prompt cooperation in such defense. If there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a result of money damages or other money payments, (i) the Indemnitee shall have the right to defend, compromise or settle such Claim and (ii) the Indemnitor shall not, without the written consent of the Indemnitee, settle or compromise any Claim which does not include as an unconditional term thereof the giving by the claimant to the Indemnitee of a release from all liability in respect of such Claim.

Notice and Defense. The Party party or parties to be indemnified (Indemniteewhether one or more, the "Indemnified Party") shall will give the Party party from whom indemnification is sought (Indemnitorthe "Indemnifying Party") prompt written notice of any such Claim, and shall permit the Indemnifying Party, at its option, to participate in the defense of such Claim for which indemnification is soughtby counsel of its own choice and at its expense. Failure to give such notice shall not affect the Indemnitor’s Indemnifying Party's duty or obligations under this Article 8, except to the extent the Indemnitor Indemnifying Party is materially prejudiced thereby. The Indemnitor may undertake the defense of any third Party claim by representatives chosen by it. If the Indemnitor undertakes Indemnifying Party acknowledges in writing its obligation to indemnify the defense of a Indemnified Party against any Damages (without limitation, except for limitations on indemnification pursuant to Sections 8.1(b) or 8.1(e), as the case may be) that may result from such Claim, then the Indemnitor Indemnifying Party shall be deemed entitled to accept that undertake the defense thereof at its expense and through counsel chosen by it has an indemnification obligation under this Paragraph 8 with respect (subject to the Indemnified Party's reasonable approval). In all matters concerning the holders of Shares by virtue of several liability, the Stockholders Representative shall give and receive notice and otherwise act in all respects on their behalf. So long as the Indemnifying Party is defending any such Claim actively and in good faith, the Indemnified Party shall not settle such Claim. The Indemnitee Indemnified Party shall make available to the Indemnitor Indemnifying Party or its representatives all records and other materials required by them and in the possession or under the control of the IndemniteeIndemnified Party, for the use of the Indemnitor Indemnifying Party and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. If there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a result of money damages or other money payments, (i) the Indemnitee shall have the right to defend, compromise or settle such Claim and (ii) the Indemnitor shall not, without the written consent of the Indemnitee, settle or compromise any Claim which does not include as an unconditional term thereof the giving by the claimant to the Indemnitee of a release from all liability in respect of such Claim.