Common use of Obligation to Defend Clause in Contracts

Obligation to Defend. Notice; Co-operation - Whenever a Claim shall arise for indemnification under Section 10.4, the relevant Indemnitee, as appropriate, shall promptly notify the Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Party shall have the right to defend against such liability or assertion in which event the Indemnifying Party shall give written notice to the Indemnitee of acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying Party. Except as set forth below, such notice to the relevant Indemnitee shall give the Indemnifying Party full authority to defend, adjust, compromise or settle such Claim with respect to which such notice shall have been given, except to the extent that any compromise or settlement shall prejudice the Intellectual Property Rights of the relevant Indemnitees. The Indemnifying Party shall consult with the relevant Indemnitee prior to any compromise or settlement that would affect the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee shall have the right to refuse such compromise or settlement and, at the refusing Party's or refusing Parties' cost, to take over such defense, provided that in such event the Indemnifying Party shall not be responsible for, nor shall it be obligated to indemnify the relevant Indemnitee against, any cost or liability in excess of such refused compromise or settlement. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnitee shall be entitled to participate with

Obligation to Defend. Notice; Co-operation - Whenever a Claim shall arise for indemnification under Section 10.4, the relevant Indemnitee, as appropriate, (a) Each Party shall promptly notify the Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party other in writing of any liability that alleged or threatened infringement of any Vion Licensed Patent in the Indemnifying Territory of which such Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claimbecomes aware. The Indemnifying Party VION shall have the right to defend the Vion Licensed Patents against infringement or interference by other parties in the Territory, including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that XXXXX shall be entitled in each instance to participate through counsel of its selection and at its own expense. In the event VION determines not to initiate and pursue or participate in such liability or assertion legal action, XXXXX may initiate legal action to uphold the Vion Licensed Patents against third parties in which event the Indemnifying Party shall give written notice to the Indemnitee of acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying PartyTerritory. Except as set forth below, such notice to the relevant Indemnitee shall give the Indemnifying Party full authority to defend, adjust, compromise or settle such Claim The parties will cooperate in good faith with respect to any such action. Any settlement of any such action shall require VION's prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs and expenses incurred in connection with prosecuting or participating in such notice lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by XXXXX shall have been given, except be considered Net Sales and shall be subject to the extent that royalty obligation under this Agreement and any compromise or settlement remaining damage award in litigation prosecuted by VION shall prejudice the Intellectual Property Rights of the relevant Indemnitees. The Indemnifying be retained by VION. (b) Each Party shall consult with promptly notify the relevant Indemnitee prior to any compromise other in writing in the event that a third party shall bring a claim or settlement that would affect action of infringement against XXXXX or VION in the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee Territory. VION shall have the right to refuse such compromise or settlement anddefend, at its own expense, any such third party claim or action and to settle or compromise the refusing Party's or refusing Parties' cost, to take over such defense, provided that same in such event the Indemnifying Party manner as it shall see fit, provided, that VION shall consult with XXXXX as to any such settlement or compromise. XXXXX may participate in such litigation or claim on its behalf at its own expense. If VION elects not be responsible for, nor shall it be obligated to indemnify the relevant Indemnitee against, any cost defend against such claim and not to obtain a license to permit XXXXX to exercise its license or liability in excess sublicense free of such refused compromise claim, then XXXXX may, in its own name and at its sole expense, defend such claim and may compromise, settle or settlement. With respect to any otherwise pursue such defense accepted by the Indemnifying Party, the relevant Indemnitee in such a manner and on such terms as XXXXX shall be entitled to participate withsee fit.

Obligation to Defend. Notice; Co-operation - Whenever a Claim shall arise for indemnification Subject to the limits on each Indemnitor's obligation to indemnify with respect to matters as set forth herein, each Indemnitor agrees, unless it timely assumes the defense of any claim hereunder, to pay the Indemnified Party s costs of defending any claim, including attorneys' and paralegals' fees, accountants' fees, witness fees, and court costs, promptly after receipt of the Indemnified Party's demand therefor, from time to time, during the pendency of any claim. If the Indemnitor timely undertakes the defense (at his or its sole cost and expense and under Section 10.4his or its direction) of any claim, then so long as the relevant IndemniteeIndemnitor, as appropriatein good faith, shall promptly notify is continuously contesting or defending the Indemnifying Party and request claim: (1) the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Indemnified Party shall not relieve admit any liability with respect thereto, or settle, compromise, pay or discharge the Indemnifying same without the prior written consent of the Indemnitor; (2) the Indemnified Party shall cooperate with the Indemnitor in the contest or defense thereof; (3) the Indemnified Party shall accept any settlement thereof if, but only if, indemnification in accordance with the terms hereof with respect thereto shall be effected; and (4) the Indemnitor shall provide the Indemnified party with all information regarding the contest or defense of the claim and shall allow counsel for the Indemnified Party to monitor, at the Indemnified Party's sole expense, all proceedings in connection with the claim. Neither the Indemnitor nor the Indemnified Party shall admit any liability with respect to any claim or settle, compromise, pay or discharge any claim without the prior written consent of the other party if such settlement, compromise, payment, or discharge could expose such other party to the payment of funds which are not subject to a claim of reimbursement or indemnification from the settling, compromising or paying party. The Indemnified Party shall use reasonable efforts to preserve the status quo, not incur any penalties, and not prejudice the Indemnitor's defense of any liability that the Indemnifying Party might have, except claim prior to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Party shall have the right to defend against such liability or assertion in which event the Indemnifying Party shall give written notice to the Indemnitee of acceptance of Indemnitor undertaking the defense of such Claim claim. It is understood that Indemnitor's obligation to defend and the identity of counsel selected by the Indemnifying Party. Except as set forth below, such notice to pay defense costs is subject to the relevant Indemnitee shall give the Indemnifying Party full authority to defend, adjust, compromise or settle such Claim with respect to which such notice shall have been given, except same limits as are applicable to the extent that any compromise or settlement shall prejudice the Intellectual Property Rights of the relevant Indemnitees. The Indemnifying Party shall consult with the relevant Indemnitee prior to any compromise or settlement that would affect the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee shall have the right to refuse such compromise or settlement and, at the refusing Party's or refusing Parties' cost, to take over such defense, provided that in such event the Indemnifying Party shall not be responsible for, nor shall it be obligated to indemnify the relevant Indemnitee against, any cost or liability in excess of such refused compromise or settlement. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnitee shall be entitled to participate withIndemnifiable Matters.

Obligation to Defend. Notice; Co-operation - Cooperation 7.4.1 Whenever a Claim shall will arise for indemnification under Section 10.4this Section, the relevant Indemnitee, as appropriate, shall will promptly notify the Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party of any liability that the Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Party shall will have the right to defend against such liability or assertion in which event the Indemnifying Party shall will give written notice to the Indemnitee of acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying Party. Except as set forth belowin this section, such notice to the relevant Indemnitee shall will give the Indemnifying Party full authority to defend, adjust, compromise compromise, or settle such Claim with respect to which such notice shall will have been given, except subject to the extent that any compromise or settlement shall prejudice the Intellectual Property Rights of consultation with the relevant Indemnitees. Indemnitee The Indemnifying Party shall will consult with the relevant Indemnitee prior to any compromise or settlement that would may affect the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee shall will have the right to refuse such compromise or settlement and, at the refusing Party's or refusing Parties' cost, to take over such defense, provided that in such event the Indemnifying Party shall will not be responsible for, nor shall will it be obligated to indemnify the relevant Indemnitee against, against any cost or liability in excess of such refused compromise or settlement. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnitee shall will be entitled to participate withwith the Indemnifying Party in such defense if the Claim requests equitable relief or other relief that could affect the rights of the Indemnitee and also will be entitled to employ separate counsel for such defense at such Indemnitee's expense. In the event the Indemnifying Party does not accept the defense of any indemnified Claim as provided above, the relevant Indemnitee will have the right to employ counsel for such defense at the expense of the Indemnifying Party. In the event of a failure to assume the defense, the Indemnified Party may negotiate a settlement, which shall be presented to the Indemnifying Party. If the Indemnifying Party refuses to agree to the presented settlement and refuses to take over the defense, the Indemnifying Party shall be liable for any reasonable cash settlement not involving any admission of liability by the Indemnifying Party, though such settlement may have been made by the Indemnified Party without approval of the Indemnifying Party, it being the Parties' intent that no settlement involving a non-monetary concession by the Indemnifying Party, including an admission of liability by such Party, shall take effect without the written approval of the Indemnifying Party. Each Party agrees to cooperate and to cause its employees and agents to cooperate with the other Party in the defense of any such Claim and the relevant records of each Party shall be available to the other Party with respect to any such defense, subject to the restrictions and limitations set forth in Section 7.

Obligation to Defend. Notice; Co-operation - Whenever (a) Upon receipt of a Claim shall arise Claims Notice relating to a claim brought by a third party against an Indemnified Party but excluding any claims brought against an Indemnified Party for indemnification under Section 10.4taxes, the relevant Indemnitee, as appropriate, shall promptly notify the Indemnifying Party and request shall, at his or its own expense, assume the defense of any such claim or proceeding. The Indemnified Party shall cooperate with all reasonable requests made by the Indemnifying Party relating to defend the same. Failure compromise of, or defense against, such claim or proceeding and shall make available to so notify the Indemnifying Party any books, records, other documents or personnel within its control that are necessary or appropriate for such defense. (b) The Indemnifying Party shall conduct such assumed defense or settlement in a reasonable manner. No compromise or settlement shall be agreed or made without the Indemnified Party's written consent, which shall not relieve be unreasonably withheld. In any case, the Indemnifying Party of any liability that the Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Indemnified Party shall have the right to defend against employ his or its own counsel and such liability or assertion counsel may participate in which event (but not control) such action, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless the Indemnified Party has reasonably concluded that there may be a conflict of interest between the Indemnifying Party shall give written notice to and the Indemnitee of acceptance Indemnified Party in the conduct of the defense of such Claim and action. (c) If the identity of Indemnifying Party fails to assume the defense or settlement in a reasonable manner, the Indemnified Party may engage independent counsel selected by the Indemnifying Party. Except Indemnified Party to assume the defense and may contest, pay, settle or compromise any such claim on such terms and conditions as set forth below, such notice the Indemnified Party may determine subject to the relevant Indemnitee shall give the Indemnifying Party full authority to defend, adjust, compromise or settle such Claim with respect to which such notice shall have been given, except to the extent that any compromise or settlement shall prejudice the Intellectual Property Rights written consent of the relevant Indemnitees. The Indemnifying Party shall consult with the relevant Indemnitee prior to any compromise or settlement that would affect the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee shall have the right to refuse such compromise or settlement and, at the refusing Party's or refusing Parties' cost, to take over such defense, provided that in such event the Indemnifying Party shall not be responsible for, nor shall it be obligated to indemnify the relevant Indemnitee against, any cost or liability in excess of such refused compromise or settlement. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnitee which shall not be unreasonably withheld. The reasonable fees and disbursements of such counsel shall constitute Losses for which indemnification shall be entitled to participate withmade hereunder.

Obligation to Defend. Notice; Co-operation - Cooperation 7.4.1 Whenever a Claim shall will arise for indemnification under Section 10.4this Section, the relevant Indemnitee, as appropriate, shall will promptly notify the Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party of any liability that the Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Party shall will have the right to defend against such liability or assertion in which event the Indemnifying Party shall will give written notice to the Indemnitee of acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying Party. Except as set forth belowin this section, such notice to the relevant Indemnitee shall will give the Indemnifying Party full authority to defend, adjust, compromise compromise, or settle such Claim with respect to which such notice shall will have been given, except subject to the extent that any compromise or settlement shall prejudice the Intellectual Property Rights of consultation with the relevant Indemnitees. Indemnitee The Indemnifying Party shall will consult with the relevant Indemnitee prior to any compromise or settlement that would may affect the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee shall will have the right to refuse such compromise or settlement and, at the refusing Party's or refusing Parties' cost, to take over such defense, provided that in such event the Indemnifying Party shall will not be responsible for, nor shall will it be obligated to indemnify the relevant Indemnitee against, against any cost or liability in excess of such refused compromise or settlement. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnitee shall will be entitled to participate withwith the Indemnifying Party in such defense if the Claim requests equitable relief or other relief that could affect the rights of the Indemnitee and also will be entitled to employ separate counsel for such defense at such Indemnitee's expense. In the event the Indemnifying Party does not accept the defense of any indemnified Claim as provided above, the relevant Indemnitee will have the right to employ counsel for such defense at the expense of the Indemnifying Party. In the event of a failure to assume the defense, the Indemnified Party may negotiate a settlement, which shall be presented to the Indemnifying Party. If the Indemnifying Party refuses to agree to the presented settlement and refuses to take over the defense, the Indemnifying Party shall be liable for any reasonable cash settlement not involving any admission of liability by the Indemnifying Party, though such settlement may have been made by the Indemnified Party without approval of the Indemnifying Party, it being the Parties' intent that no settlement involving a non-monetary concession by the Indemnifying Party, including an admission of liability by such Party, shall take effect without the written approval of the Indemnifying Party. Each Party agrees to cooperate and to cause its employees and agents to cooperate with the other Party in the defense of any such Claim and the relevant records of each Party shall be available to the other Party with respect to any such defense, subject to the restrictions and limitations set forth in Section