Common use of Notice of Loss Clause in Contracts

Notice of Loss. Promptly after receipt by an indemnified party of written notice of the commencement of any action or proceeding involving a Loss referred to in this Article 4, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action; but the failure of any indemnified party to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 except to the extent that the indemnifying party is materially and actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, (i) the indemnifying party will be entitled to participate in and, unless in the indemnified party’s reasonable judgment a conflict of interest exists between the indemnified and indemnifying parties in respect of such Loss, to assume and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to the indemnified party, and (ii) after its assumption of the defense thereof, the indemnifying party will not be liable to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subject.

Notice of Loss. Promptly Notwithstanding anything herein contained Buyer and Seller shall not have any liability under the indemnity provisions of this Agreement with respect to a particular matter unless a notice setting forth in reasonable detail the breach which is asserted has been given to the Indemnifying Party (hereafter defined) and, in addition, if such matter arises out of a suit, action, investigation or proceeding, such notice is given promptly after receipt by an indemnified party of written the Indemnified Party (hereafter defined) shall have been given notice of the commencement of any action a suit, action, investigation or proceeding involving a Loss referred proceeding. With respect to Buyer's Losses and claims of employees pursuant to Sections 11.2 and 11.3, hereof, Seller shall be the Indemnifying Party and Buyer shall be the Indemnified Party. With respect to Seller's Losses pursuant to Section 11.4, hereof, Buyer shall be the Indemnifying Party and Seller shall be the Indemnified Party. The Indemnifying Party shall have 30 days from the date the notice is given in this Article 4, such indemnified party will, if a claim in respect thereof is accordance with the notice provisions hereof (the "Notice Period") to be made against an indemnifying party, give written notice notify the Indemnified Party whether it disputes the liability of the Indemnifying Party to the indemnifying party Indemnified Party hereunder with respect to such losses and whether it desires, at the sole cost and expense of the commencement Indemnifying Party, to defend the Indemnified Party against such losses. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of such action; but the failure Indemnifying Party (and of any indemnified party which it shall have given notice and opportunity to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 except comment to the extent Indemnifying Party) and that the indemnifying party is materially and actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, (i) the indemnifying party will be entitled to participate in and, unless in the indemnified party’s reasonable judgment a conflict of interest exists between the indemnified and indemnifying parties in respect of such Loss, to assume and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, not prejudicial to the extent that it may wish, with counsel reasonably satisfactory to the indemnified party, and (ii) after its assumption of the defense thereof, the indemnifying party will not be liable to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectIndemnifying Party.

Notice of Loss. Promptly after receipt by an indemnified party of (a) An Indemnified Party shall give the Indemnifying Party prompt written notice of any matter which an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, stating in reasonable detail the commencement amount of any action or proceeding involving a Loss referred to in this Article 4, such indemnified party willthe Loss, if known, and method of computation thereof, and containing a claim reference to the provisions of this Agreement in respect thereof of which such right of indemnification is claimed or arises (an “Indemnification Claim Notice”). Any failure on the part of an Indemnified Party to be made against an indemnifying party, give written provide notice to the indemnifying party promptly shall not limit any of the commencement obligations of such action; but the failure of any indemnified party to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 Indemnifying Party, except to the extent such failure materially prejudices the Indemnifying Party’s ability to defend such claim. (b) In the event that the indemnifying party is materially and actually prejudiced by such failure to give notice. In case Indemnifying Party shall not dispute any such action is brought against an indemnified party, (i) the indemnifying party will be entitled to participate in and, unless Losses or amounts in the indemnified party’s reasonable judgment Indemnification Claim Notice, the Indemnifying Party shall as soon as practicable, but in no event greater than 30 calendar days from receipt of the Indemnification Claim Notice, remit payment of the amounts of Loss to the Indemnified Party. (c) In the event that the Indemnifying Party shall disagree with any Losses or amounts in the Indemnification Claim Notice within 30 calendar days following receipt of the Indemnification Claim Notice, the Indemnifying Party may deliver a conflict of interest exists between the indemnified and indemnifying parties in respect notice of such Lossdisagreement (an “Indemnification Claim Dispute”) setting forth, to assume in reasonable detail and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, to the extent practicable, each item or amount of Loss so disputed by the Indemnifying Party. In the event that it may wish, with counsel reasonably satisfactory the Indemnifying Party shall deliver to the indemnified partyIndemnified Party an Indemnification Claim Dispute, the Indemnified Party may either: (1) elect to negotiate any disputed item(s) and amount(s) of Loss or (2) refer any disputed item(s) and amount(s) to arbitration as set forth in Section 9.5(e) below for resolution in accordance with the terms and conditions thereof. (d) In the event that the Indemnifying Party and the Indemnified Party shall reach agreement on any of the disputed items and amounts of Loss set forth in the Indemnification Claim Notice, then (A) the Indemnifying Party and the Indemnified Party shall (1) execute a memorandum setting forth the resolved item(s) and/or amount(s) of Loss and (ii2) after its assumption refer any remaining disputed item(s) and amount(s) to arbitration as set forth in Section 9.5(e) below for resolution in accordance with the terms and conditions thereof and (B) the Indemnifying Party shall within 30 calendar days of the defense thereof, execution of such memorandum make the indemnifying party will not be liable payment to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption Indemnified Party of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectagreed upon amount.

Notice of Loss. Promptly after receipt by an indemnified party of written (a) A Parent Indemnified Party shall give the Stockholder Representative notice of any matter which such Parent Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, stating the commencement amount of any action or proceeding involving a Loss referred to in this Article 4, such indemnified party willthe Loss, if known, and method of computation thereof, a claim description in reasonable detail of the circumstances giving rise to the Loss and containing a reference to the provisions of this Agreement in respect thereof of which such right of indemnification is claimed or arises (an “Indemnification Claim Notice”). Any failure on the part of a Parent Indemnified Party to be made against an indemnifying partyprovide notice promptly shall not limit any rights to indemnification for such Parent Indemnified Party, give written notice to the indemnifying party of the commencement of such action; but the failure of any indemnified party to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 except to the extent such failure materially prejudices defense of such claim. (b) In the event that the indemnifying party is materially Stockholder Representative shall not dispute any Losses or amounts in the Indemnification Claim Notice, the Stockholder Representative shall as soon as practicable, but in no event greater than 30 calendar days from receipt of the Indemnification Claim Notice, instruct Parent that it may reduce the number of Holdback Shares by a number of shares with a value (based on the Parent Share Price) equal to the amount of the Loss. If the Stockholder Representative shall fail to dispute Losses within such 30 calendar days, the Stockholder Representative shall be deemed to have not disputed the Losses set forth in the Indemnification Claim Notice and actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, (i) the indemnifying party will Parent shall be entitled to participate in and, unless retain such amount of Holdback Shares. (c) In the event that the Stockholder Representative shall disagree with any Losses or amounts in the indemnified party’s reasonable judgment Indemnification Claim Notice within 30 calendar days following receipt of the Indemnification Claim Notice, the Stockholder Representative may deliver a conflict of interest exists between the indemnified and indemnifying parties in respect notice of such Lossdisagreement (an “Indemnification Claim Dispute”) setting forth, to assume in reasonable detail and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, to the extent practicable, each item or amount of Loss so disputed by the Stockholder Representative. In the event that the Stockholder Representative shall deliver to the Parent Indemnified Party an Indemnification Claim Dispute, the Parent Indemnified Party may either: (1) elect to negotiate any disputed item(s) and amount(s) of Loss or (2) seek resolution of such matter through arbitration as provided in Section 10.4. (d) In the event that the Stockholder Representative and the Parent Indemnified Party shall reach agreement on any of the disputed items and amounts of Loss set forth in the Indemnification Claim Notice, then (A) the Stockholder Representative and the Parent Indemnified Party shall (1) execute a memorandum setting forth the resolved item(s) and/or amount(s) of Loss and (2) refer any remaining disputed item(s) and amount(s) to judicial resolution and (B) Parent shall be entitled to reduce the number of Holdback Shares by a number of shares with a value equal to the agreed upon amount. (e) If no agreement between the Stockholder Representative and the Parent Indemnified Party on the Losses set forth in the Indemnification Claim Notice can be reached after good faith negotiation and within 30 calendar days after delivery of an Indemnification Claim Notice, either the Stockholder Representative or the Parent Indemnified Party may seek to have the matter resolved judicially unless the amount of the Loss that is at issue is the subject of a pending litigation with a Third Party, in which event judicial resolution shall not be commenced until such amount is ascertained or both parties agree to seek judicial resolution. (f) The Stockholder Representative shall use commercially reasonable efforts to assist Parent in recovering any Losses it may wish, with counsel reasonably satisfactory validly seek to recover from the Company Common Stockholders pursuant to the indemnified party, and (ii) after its assumption provisions of the defense thereof, the indemnifying party will not be liable to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectthis Article IX.

Notice of Loss. Promptly after receipt by an indemnified An Indemnified Party claiming indemnification under this Agreement shall promptly (i) notify the party from whom indemnification is sought (the "INDEMNIFYING PARTY") of any third party claim or claims asserted against the Indemnified Party ("THIRD PARTY CLAIM") that could give rise to a right of indemnification under this Agreement and (ii) transmit to the Indemnifying Party a written notice ("CLAIM NOTICE") describing in reasonable detail the nature of the commencement Third Party Claim, a copy of any action or proceeding involving a Loss referred all papers served with respect to in this Article 4that claim (if any), such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice estimate of the amount of damages attributable to the indemnifying party Third Party Claim to the extent feasible (which estimate shall not be conclusive of the commencement final amount of such action; but that claim) and the basis for the Indemnified Party's request for indemnification under this Agreement. Notwithstanding the preceding sentence, failure of any indemnified party the Indemnified Party to give notice as provided herein will hereunder shall not relieve release the indemnifying party of Indemnifying Party from its obligations under this Article 4 VIII, except to the extent that the indemnifying party Indemnifying Party is materially and actually prejudiced by such failure to give notice. In case Within fifteen (15) days after receipt of any such action is brought against an indemnified partyClaim Notice (the "ELECTION PERIOD"), the Indemnifying Party shall notify the Indemnified Party (i) whether the indemnifying party will be entitled to participate in and, unless in the indemnified party’s reasonable judgment a conflict of interest exists between the indemnified and indemnifying parties in respect of such Loss, to assume and control the defense thereof, at Indemnifying Party disputes its own expense, jointly with any other indemnifying party similarly notified, potential liability to the extent Indemnified Party under this Article VIII with respect to that it may wish, with counsel reasonably satisfactory to the indemnified party, Third Party Claim and (ii) after if the Indemnifying Party does not dispute its assumption potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the defense thereofIndemnifying Party, to defend the indemnifying party will not Indemnified Party against that Third Party Claim. With respect to Buyer's Losses and Environmental Costs, Seller shall be liable the "INDEMNIFYING PARTY" and Buyer and the Company and its respective directors, officers, employees, representatives, agents and attorneys shall be the "INDEMNIFIED PARTIES." With respect to Seller's Losses, Buyer shall be the indemnified party for any legal or other expenses subsequently incurred by "INDEMNIFYING PARTY" and Seller and its directors, officers, employees, representatives, agents and attorneys shall be the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subject"INDEMNIFIED PARTY."

Notice of Loss. Promptly Notwithstanding anything herein contained, -------------- neither BANCFIRST nor XXXXXXX shall have any liability under the indemnity provisions of this Agreement with respect to a particular matter unless a notice setting forth in reasonable detail the claim which is asserted has been given to the Indemnifying Party (hereafter defined) within five (5) days after receipt by an indemnified party the Indemnified Party becomes aware of written such claim and, in addition, if such matter arises out of a suit, action, investigation or proceeding, such notice is given within five (5) days after the Indemnified Party (hereafter defined) shall have been given notice of the commencement of any action a suit, action, investigation or proceeding involving a Loss referred proceeding. With respect to BANCFIRST's Losses pursuant to Section 8.02 hereof, ------------ XXXXXXX shall be the Indemnifying Party and BANCFIRST and/or CENTURY shall be the Indemnified Party. With respect to XXXXXXX Losses pursuant to Section 8.03 ------------ hereof, BANCFIRST shall be the Indemnifying Party and XXXXXXX shall be the Indemnified Party. The Indemnifying Party shall have 20 days from the date the notice is given in accordance with this Article 4, such indemnified party will, if a claim in respect thereof is Section (the "Notice Period") to be made against an indemnifying party, give written notice notify the Indemnified Party whether it disputes the liability of the Indemnifying Party to the indemnifying party Indemnified Party hereunder with respect to such claims and whether it desires, at the sole cost and expense of the commencement Indemnifying Party, to defend the Indemnified Party against such claims. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of such action; but the failure Indemnifying Party (and of any indemnified party which it shall have given notice and opportunity to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 except comment to the extent Indemnifying Party) and that the indemnifying party is materially and actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, (i) the indemnifying party will be entitled to participate in and, unless in the indemnified party’s reasonable judgment a conflict of interest exists between the indemnified and indemnifying parties in respect of such Loss, to assume and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, not prejudicial to the extent that it may wish, with counsel reasonably satisfactory to the indemnified party, and (ii) after its assumption of the defense thereof, the indemnifying party will not be liable to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectIndemnifying Party.

Notice of Loss. Promptly (a) In order for an Indemnified Party to be entitled to any indemnification provided for under Section 8.1(a) or 8.1(b) in respect of, arising out of or involving a Third Party Claim, such Indemnified Party must notify the applicable Indemnifying Party in writing of the Third Party Claim (including in such notice a brief description of the applicable claim(s), including damages sought or estimated, to the extent actually known by such Indemnified Party) within 20 business days after receipt by an indemnified party such Indemnified Party of written actual notice of the commencement of any action or proceeding involving a Loss referred to in this Article 4Third Party Claim; provided, such indemnified party willhowever, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action; but the that failure of any indemnified party to give notice as such notification shall not affect the indemnification provided herein will not relieve the indemnifying party of its obligations under this Article 4 Section 8.1(a) or 8.1(b) except to the extent the Indemnifying Party has been actually prejudiced as a result of such failure. (b) If the Indemnifying Party has acknowledged in writing to the Indemnified Party the Indemnifying Party’s responsibility for defending and indemnifying the Indemnified Party with respect to such Third Party Claim (subject to the limitations set forth in Section 8.6), the Indemnifying Party shall have the right to defend (with counsel reasonably selected by the Indemnifying Party and approved by the Indemnified Party, such approval not to be unreasonably withheld, conditioned or delayed), at its sole cost and expense, such Third Party Claim (other than a class action, a criminal matter or a claim in which non-monetary equitable or injunctive relief against the Indemnified Party is sought) by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party; provided, however, that the indemnifying party is materially and actually prejudiced by such failure to give notice. In case Indemnifying Party may not enter into any such action is brought against an indemnified party, compromise or settlement unless (i) the indemnifying party will be entitled to participate in and, unless in the indemnified party’s reasonable judgment a conflict of interest exists between the indemnified and indemnifying parties in respect of such Loss, to assume and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to the indemnified party, and (ii) after its assumption of the defense thereof, the indemnifying party will not be liable to the indemnified party for any legal compromise or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include includes as an unconditional term thereof thereof, the giving by the each claimant or plaintiff to the indemnified party Indemnified Party of a release from all liability in respect of such Loss Third Party Claim; and (ii) the Indemnified Party consents to such compromise or settlement, which requires action on consent shall not be withheld or delayed unless such compromise or settlement involves (A) any admission of legal wrongdoing by the part Indemnified Party, (B) any payment by the Indemnified Party that is not indemnified hereunder or (C) the imposition of any equitable relief against the Indemnified Party, in which case for clauses (A) - (C) above, the Indemnified Party may withhold its consent in its sole discretion. If the Indemnifying Party does not elect to assume control of the indemnified party defense of a Third Party Claim or otherwise subjects if a good faith and diligent defense is not being or ceases to be materially conducted by the indemnified party Indemnifying Party, the Indemnified Party shall have the right, at the expense of the Indemnifying Party, upon at least ten (10) Business Days’ prior written notice to the Indemnifying Party of its intent to do so, to undertake the defense of such Third Party Claim for the account of the Indemnifying Party (with counsel reasonably selected by the Indemnified Party and approved by the Indemnifying Party, such approval not to be unreasonably withheld or delayed), provided, that the Indemnified Party shall keep the Indemnifying Party apprised of all material developments with respect to such Third Party Claim and promptly provide the Indemnifying Party with copies of all correspondence and documents exchanged by the Indemnified Party and the opposing party(ies) to such litigation. The Indemnified Party may not compromise or settle such litigation without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. (c) The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 8.2 and shall bear its own costs and expenses with respect to such participation; provided, however, that the Indemnifying Party shall bear such costs and expenses if counsel for the Indemnifying Party shall have reasonably determined that such counsel may not properly represent both the Indemnifying Party and the Indemnified Party. (d) In order for an Indemnified Party to be entitled to any obligation indemnification provided for under this Agreement other than in respect of, arising out of or restriction involving a Third Party Claim, such Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party (including in such notice a brief description of the applicable claim(s), including damages sought or estimated, to the extent actually known by such Indemnified Party, and the Section(s) of this Agreement upon which it would such claim for indemnification is then based); provided, however, that failure to give such notification shall not otherwise be subjectaffect the indemnification provided under Section 8.1(a) or 8.1(b) except to the extent the Indemnifying Party has been actually prejudiced as a result of such failure.

Notice of Loss. Promptly after receipt Notwithstanding anything herein contained, an indemnifying party ("INDEMNIFYING PARTY") shall not have any liability under the indemnity provisions of this Agreement with respect to any fact or occurrence known by an any indemnified party ("INDEMNIFIED PARTY") with respect to a particular matter unless a notice setting forth in reasonable detail the breach which is asserted has been given to the Indemnifying Party and, in addition, if such matter arises out of written a suit, action, investigation or proceeding, such notice is given promptly after the Indemnified Party shall have been given notice of the commencement of a suit, action, investigation or proceeding. A failure to give, or delay in giving, any action or proceeding involving a Loss referred such notice hereunder shall not affect the rights of an Indemnified Party to in this Article 4, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action; but the failure of any indemnified party to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 indemnification hereunder except to the extent that the indemnifying party Indemnifying Party is materially and actually prejudiced by as a result of such failure to give noticeor delay. In case any such action is brought against an indemnified partySECTIONS 11.9 AND 11.10 HEREOF ARE INTENDED TO INDEMNIFY THE INDEMNIFIED PARTIES AGAINST THE RESULTS OF THEIR OWN NEGLIGENCE. AN INDEMNIFIED PARTY'S FAILURE TO INVESTIGATE, OR A LACK OF DUE DILIGENCE OCCURRING FOR ANY REASON WHATSOEVER, SHALL NOT (I) CONSTITUTE NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT FOR PURPOSES OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THIS SECTION), (iII) the indemnifying party will be entitled to participate in andCONSTITUTE A DEFENSE TO ANY ACTION OR PROCEEDING BROUGHT BY THE INDEMNIFIED PARTY TO ENFORCE HIS OR ITS RIGHTS UNDER THIS ARTICLE 11, unless in the indemnified party’s reasonable judgment a conflict of interest exists between the indemnified and indemnifying parties in respect of such Loss(III) EXCUSE PERFORMANCE BY THE INDEMNIFYING PARTY OF ITS OBLIGATIONS UNDER THIS ARTICLE 11, to assume and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to the indemnified party, and OR (ii) after its assumption of the defense thereof, the indemnifying party will not be liable to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectIV)ENTITLE THE INDEMNIFY ING PARTY TO ANY RIGHT OF SET OFF OR COUNTERCLAIM AGAINST AMOUNTS OWED UNDER THIS ARTICLE 11.

Notice of Loss. Promptly after receipt by an indemnified party (a) Except to the extent set forth in the next sentence and other than pursuant to Sections 2.4 and 9.3 hereof, the Buyer will not have a right to recovery from the Escrowed Funds with respect to a particular matter unless a signed certificate setting forth in reasonable detail the breach or other matter that is asserted and stating the Buyer Loss(es) incurred (a “Claims Notice”) has been given to the Indemnifying Party (as defined below) and, in addition, if such matter arises out of written notice of the commencement of any action a suit, action, investigation, proceeding or proceeding involving a Loss referred to in this Article 4claim, such indemnified party willnotice is given promptly. Notwithstanding the preceding sentence, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action; but the failure of any indemnified party the Indemnified Party (as defined below) to give notice as provided herein will hereunder shall not relieve release the indemnifying party of Indemnifying Party from its obligations under this Article 4 IX, except to the extent that the indemnifying party Indemnifying Party is materially and actually prejudiced by such failure to give notice. In case With respect to Buyer Losses, the Shareholder Representative is referred to as the “Indemnifying Party” solely for the purpose of receiving Claims Notices as provided herein and in the Escrow Agreement, exercising its right to defend as provided herein, and shall have no personal liability for Buyer Losses or other liability to the Buyer as a result of acting as the Shareholder Representative, but shall cause the Shareholders to answer to claims made by the Buyer for Buyer Losses. Upon receipt of a Claims Notice, the Shareholder Representative shall promptly submit, but in any event within thirty (30) days after receipt of the Claims Notice (the “Objection Termination Date”) a notice to the Buyer that includes any objection with respect to a Claims Notice. If the Shareholder Representative does not give such action is brought against an indemnified partynotice on or before sooner of the Objection Termination Date or the Indemnification Termination Date, (i) the indemnifying party Claims Notice will be entitled deemed to participate be a final description of Buyer Losses to which Section 9.1 applies. (b) In the event the Shareholder Representative gives such objection notice within such 30-day period, the Shareholder Representative and the Buyer shall attempt in andgood faith to agree upon the rights of the respective parties with respect to each of such claims. If no such agreement can be reached after good faith negotiation with respect to any claim objection, unless either the Buyer or the Shareholder Representative may demand arbitration of the matter and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Buyer and the Shareholder Representative. In the event that within fifteen (15) days after submission of any dispute to arbitration, the Buyer and the Shareholder Representative cannot mutually agree on one (1) arbitrator, the Buyer and the Shareholder Representative shall each select one (1) arbitrator, and the two (2) arbitrators so selected shall select a third (3rd) arbitrator. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the indemnified party’s reasonable sole judgment a conflict of interest exists between the indemnified and indemnifying parties in respect arbitrator or majority of such Lossthe three (3) arbitrators, as the case may be, to assume discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator or a majority of the three (3) arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and control shall have the defense thereofauthority to impose sanctions, at its own expense, jointly with any other indemnifying party similarly notifiedincluding attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrators or a majority of the three (3) arbitrators, as the case may be, determine that it discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three (3) arbitrators, as the case may wishbe, with counsel reasonably satisfactory as to the indemnified validity and amount of any claim in such Claims Notice shall be binding and conclusive upon the parties to this Agreement. Such decision shall be written and shall be supported by written findings of fact and conclusions that shall set forth the award, judgment, decree or order awarded by the arbitrator(s). (c) Judgment upon any award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Any such arbitration shall be held under the commercial arbitration rules then in effect of the American Arbitration Association in Santa Xxxxx County, California. The arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including, without limitation, the respective expenses (including, without limitation, attorneys fees) of each party, the fees of each arbitrator and (ii) after its assumption the administrative fee of the defense thereofAmerican Arbitration Association. In allocating such fees, the indemnifying party arbitrators will not consider such matters as whether the arbitration proceeding was frivolous or brought or defended in bad faith and which party’s negotiation offers most closely resembled the final arbitrated result. (d) Failure of the Company to adhere to its obligations and covenants arising pursuant to Sections 6.4 and 6.9(c) shall constitute a Buyer Loss, such that any payment that becomes due from the Buyer in order to allow Buyer to use the Financial Statements or the Company’s historical financial statements for any reasonable business purpose shall be liable recoverable by the Buyer pursuant to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs operation of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectthis Article IX.

Notice of Loss. Promptly after receipt by an indemnified party of (a) An Indemnified Party shall give the Indemnifying Party prompt written notice of any matter which an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, stating in reasonable detail the commencement amount of any action or proceeding involving a Loss referred to in this Article 4, such indemnified party willthe Loss, if known, and method of computation thereof, and containing a claim reference to the provisions of this Agreement in respect thereof of which such right of indemnification is claimed or arises (an “Indemnification Claim Notice”). Any failure on the part of an Indemnified Party to be made against an indemnifying party, give written provide notice to the indemnifying party promptly shall not limit any of the commencement obligations of such action; but the failure of any indemnified party to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 Indemnifying Party, except to the extent such failure materially prejudices the Indemnifying Party’s ability to defend such claim. (b) In the event that the indemnifying party is materially and actually prejudiced by such failure to give notice. In case Indemnifying Party shall not dispute any such action is brought against an indemnified party, (i) the indemnifying party will be entitled to participate in and, unless Losses or amounts in the indemnified party’s reasonable judgment Indemnification Claim Notice, the Indemnifying Party shall as soon as practicable, but in no event greater than 30 calendar days from receipt of the Indemnification Claim Notice, remit payment of the amounts of Loss to the Indemnified Party. (c) In the event that the Indemnifying Party shall disagree with any Losses or amounts in the Indemnification Claim Notice within 30 calendar days following receipt of the Indemnification Claim Notice, the Indemnifying Party may deliver a conflict of interest exists between the indemnified and indemnifying parties in respect notice of such Lossdisagreement (an “Indemnification Claim Dispute”) setting forth, to assume in reasonable detail and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, to the extent practicable, each item or amount of Loss so disputed by the Indemnifying Party. In the event that it may wish, with counsel reasonably satisfactory the Indemnifying Party shall deliver to the indemnified partyIndemnified Party an Indemnification Claim Dispute, the Indemnified Party may either: (1) elect to negotiate any disputed item(s) and amount(s) of Loss or (2) refer any disputed item(s) and amount(s) to arbitration as set forth in Section 8.5(e) below for resolution in accordance with the terms and conditions thereof. (d) In the event that the Indemnifying Party and the Indemnified Party shall reach agreement on any of the disputed items and amounts of Loss set forth in the Indemnification Claim Notice, then (A) the Indemnifying Party and the Indemnified Party shall (1) execute a memorandum setting forth the resolved item(s) and/or amount(s) of Loss and (ii2) after its assumption refer any remaining disputed item(s) and amount(s) to arbitration as set forth in Section 8.5(e) below for resolution in accordance with the terms and conditions thereof and (B) the Indemnifying Party shall within 30 calendar days of the defense thereof, execution of such memorandum make the indemnifying party will not be liable payment to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption Indemnified Party of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectagreed upon amount.

Notice of Loss. Promptly after receipt by an indemnified party of (a) An Indemnified Party shall give the Indemnifying Party prompt written notice of any matter which an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, stating in reasonable detail the commencement amount of any action or proceeding involving a Loss referred to in this Article 4, such indemnified party willthe Loss, if known, and method of computation thereof, and containing a claim reference to the provisions of this Agreement in respect thereof of which such right of indemnification is claimed or arises (an “Indemnification Claim Notice”). Any failure on the part of an Indemnified Party to be made against an indemnifying party, give written provide notice to the indemnifying party promptly shall not limit any of the commencement obligations of such action; but the failure of any indemnified party to give notice as provided herein will not relieve the indemnifying party of its obligations under this Article 4 Indemnifying Party, except to the extent such failure materially prejudices the Indemnifying Party’s ability to defend such claim. (b) In the event that the indemnifying party is materially Indemnifying Party shall not dispute any Losses or amounts in the Indemnification Claim Notice, the Indemnifying Party shall as soon as practicable, but in no event greater than 30 calendar days from receipt of the Indemnification Claim Notice, remit payment of the amounts of Loss to the Indemnified Party. (c) In the event that the Indemnifying Party shall disagree with any Losses or amounts in the Indemnification Claim Notice within 30 calendar days following receipt of the Indemnification Claim Notice, the Indemnifying Party may deliver a notice of such disagreement (an “Indemnification Claim Dispute”) setting forth, in reasonable detail and actually prejudiced to the extent practicable, each item or amount of Loss so disputed by such failure to give noticethe Indemnifying Party. In case the event that the Indemnifying Party shall deliver to the Indemnified Party an Indemnification Claim Dispute, the Indemnified Party may either: (i) elect to negotiate any such action is brought against an indemnified partydisputed item(s) and amount(s) of Loss or (ii) refer any disputed item(s) and amount(s) to arbitration as set forth in Section 9.5(e) below for resolution in accordance with the terms and conditions thereof. (d) In the event that the Indemnifying Party and the Indemnified Party shall reach agreement on any of the disputed items and amounts of Loss set forth in the Indemnification Claim Notice, then (i) the indemnifying party will be entitled Indemnifying Party and the Indemnified Party shall (A) execute a memorandum setting forth the resolved item(s) and/or amount(s) of Loss and (B) refer any remaining disputed item(s) and amount(s) to participate arbitration as set forth in and, unless Section 9.5(e) below for resolution in accordance with the indemnified party’s reasonable judgment a conflict of interest exists between the indemnified terms and indemnifying parties in respect of such Loss, to assume and control the defense thereof, at its own expense, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to the indemnified party, conditions thereof and (ii) after its assumption the Indemnifying Party shall within 30 calendar days of the defense thereof, execution of such memorandum make the indemnifying party will not be liable payment to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation, unless in the indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption Indemnified Party of the defense thereof. No indemnifying party will be liable for any settlement of any such action or proceeding effected without the indemnifying party’s written consent, which will not be unreasonably withheld. No indemnifying party will, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of such Loss or which requires action on the part of the indemnified party or otherwise subjects the indemnified party to any obligation or restriction to which it would not otherwise be subjectagreed upon amount.