Common use of Procedures Relating to Indemnification Involving Third Party Claims Clause in Contracts

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claim. Thereafter, the indemnified party shall deliver to the indemnifying party, within five Business Days after the indemnified party's receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. In the event the provisions of Section 8.4 are inconsistent with any provision of this Article VII, the provisions of Section 8.4 shall control with respect to the contest of tax matters. (b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it promptly so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel has been consented to by the indemnified party, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 days following receipt of notice of a claim from the indemnified party shall be deemed to be a prompt response. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. (c) In connection with any Third Party Claim, the indemnified parties and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's request) the provision to such party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying party shall not agree to any settlement, compromise or discharge of such Third Party Claim without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, provided however no consent of the indemnified party shall be required if such settlement, compromise or discharge by its terms releases the indemnified party completely in connection with such Third Party Claim and would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense of a Third Party Claim, the indemnified party may settle, compromise or discharge, such Third Party Claim in good faith without the indemnifying party's prior consent. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound by any compromise, settlement or discharge effected without its consent, which consent may not be unreasonably withheld. Seller shall be entitled to participate in the defense of any such claim and to employ counsel of its choosing (not reasonably objected to by Buyer), at its own expense, separate from the counsel employed by Buyer. (f) In the event than an indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming the defense of the Third Party Claim, then such legal fees and expenses may be included in any indemnification claim made by the indemnified party, provided that such actions were reasonably required in order for the indemnified party to avoid liability with respect to such matter.

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the indemnified such party (a "“Third Party Claim"”), such indemnified party must promptly notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Party Claim; provided, provided however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claimfailure. Thereafter, the indemnified party shall promptly deliver to the indemnifying party, within five Business Days party after the indemnified party's ’s receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. In the event the provisions of Section Sections 8.3 or 8.4 are inconsistent with any provision of this Article VII, the provisions of Section Sections 8.3 or 8.4 shall control with respect to the contest of tax Tax matters. In the event that more than one Stockholder is an indemnifying party hereunder, the indemnified party may provide the notices and other communications required pursuant to this Section 7.6 solely to the Stockholders’ Representative. (b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it promptly so chooseschooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel has been consented is not reasonably objected to by the indemnified party, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 days following receipt of notice of a claim from the indemnified party shall be deemed to be a prompt response. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. However, notwithstanding the foregoing, if Eclipsys or any of its Affiliates is an indemnified party in connection with a Third Party Claim involving any then current employee, any then current client or supplier or the owner of any Intellectual Property then used in the Business, Eclipsys may control the defense, at the cost of the indemnifying party, subject to reasonable input from the indemnifying party, with reasonableness determined by reference, among other things, to any conflicting interests between the indemnified party and indemnifying party. (c) The indemnifying party shall be liable for the reasonable fees and expenses of counsel employed by the indemnified party in connection with a Third Party Claim for any period during which the indemnifying party has failed to assume or is not entitled to assume the defense thereof, provided however, the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one local counsel, where applicable). In connection with any Third Party Claim, the indemnified parties party and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's ’s request) the provision to such party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, including deposition or trial testimony. (d) If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying indemnified party shall not have the right to settle or compromise such claim, and shall agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim without the prior written consent of the indemnified partyClaim, which consent shall not be unreasonably withheld, provided however no consent of the indemnified party shall be required if such settlement, compromise or discharge by its terms releases the indemnified party completely in connection with such Third Party Claim and which would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense of a Third Party Claim, the indemnified party may settle, compromise or discharge, such Third Party Claim in good faith without the indemnifying party's ’s prior consent. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by any compromisethe indemnified party in defending such Third Party Claim) if: (i) the Third Party Claim seeks an order, settlement injunction or discharge effected without other equitable relief or relief for other than money damages against the indemnified party which the indemnified party reasonably determines, after conferring with its consentoutside counsel, which consent may cannot be unreasonably withheldseparated from any related claim for money damages, or (ii) the indemnified party reasonably determines, after conferring with its outside counsel, that joint representation would be expected to give rise to a conflict of interest. Seller If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to participate in the defense of any such claim and to employ counsel of its choosing (not reasonably objected to by Buyer), at its own expense, separate from the counsel employed by Buyer. (f) In the event than an indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming assume the defense of the portion relating to money damages. All claims under Section 7.2 other than Third Party Claim, then such legal fees and expenses may Claims shall be included in any indemnification claim made governed by the indemnified party, provided that such actions were reasonably required in order for the indemnified party to avoid liability with respect to such matterSection 7.7.

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the indemnified party (a "Third Any Parent Indemnified Party Claim"), such indemnified party must shall notify the indemnifying party Escrow Agent and the Shareholders Representative prior to the termination of the Escrow Period in writing, and in reasonable detail, of the Third any claim or demand made against such Parent Indemnified Party Claim within 10 Business Days after receipt by any Person not a party to this Agreement, including any third party asserting a Tax claim, which claim or demand arises under this Agreement, and in respect of which such indemnified party of written notice of the Parent Indemnified Party seeks indemnification under Section 7.2 (a “Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice”). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claim. Thereafter, the indemnified party until such Damages have been determined, such Parent Indemnified Party shall promptly deliver to the indemnifying party, within five Business Days Escrow Agent and the Shareholders Representative (i) after the indemnified party's such Parent Indemnified Party’s receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party Parent Indemnified Party relating to the Third Party Claim. In the event the provisions , and (ii) after such Parent Indemnified Party’s delivery or filing thereof, copies of Section 8.4 are inconsistent all notices and documents (including court papers) delivered to such third party or filed with any provision of this Article VIIcourt or arbitrator by the Parent Indemnified Party, the provisions of Section 8.4 shall control with respect in each case relating to the contest of tax mattersThird Party Claim. (b) If a Third Party Claim is made against an indemnified partyIn addition to any other Damages, the indemnifying party Parent Indemnified Party shall be entitled to participate in reimbursed for the defense thereof and, if it promptly so chooses, to assume the defense thereof with reasonable fees and expenses of counsel selected employed by the indemnifying party; provided that such counsel has been consented to by the indemnified party, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 days following receipt of notice of a claim from the indemnified party shall be deemed to be a prompt response. Should the indemnifying party so elect to assume the defense of Parent Indemnified Party in connection with a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. (c) In connection with any Third The Parent Indemnified Party Claim, the indemnified parties and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's request) the provision to such party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying party shall may not agree to any settlementsettle, compromise or discharge of such any Third Party Claim as to which a claim may be made against the Shareholders or the Escrow Fund without the prior written consent of the indemnified party, Shareholders Representative (which consent shall not be unreasonably withheld, provided however no consent conditioned or delayed, if either (i) Parent reasonably determines that the shares of Parent Common Stock remaining in the indemnified party shall Escrow Indemnity Fund (after deducting the shares reasonably anticipated to be required if such payable upon resolution of all then unresolved or unpaid pending claims) are not or would not reasonably be expected to be adequate to compensate the Parent Indemnified Party in the event that the settlement, compromise or discharge by its terms releases the indemnified party completely in connection with were not approved, or (ii) Parent reasonably concludes that such Third Party Claim and will result or would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense of a Third Party Claim, the indemnified party may settle, compromise or discharge, such Third Party Claim reasonably be expected to result in good faith without the indemnifying party's prior consentshared liability). (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound by any compromise, settlement or discharge effected without its consent, which consent may not be unreasonably withheld. Seller shall be entitled to participate in the defense of any such claim and to employ counsel of its choosing (not reasonably objected to by Buyer), at its own expense, separate from the counsel employed by Buyer. (f) In the event than an indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming the defense of the Third Party Claim, then such legal fees and expenses may be included in any indemnification claim made by the indemnified party, provided that such actions were reasonably required in order for the indemnified party to avoid liability with respect to such matter.

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the indemnified such party (a "Third “Third-Party Claim"”), such indemnified party must promptly notify the indemnifying party in writing, and in reasonable detail, of the Third Third-Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the indemnifying party shall have been is actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claimfailure. Thereafter, the indemnified party shall promptly deliver to the indemnifying party, within five Business Days party after the indemnified party's ’s receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Third-Party Claim. In the event the provisions of Section 8.4 are inconsistent with any provision of this Article VIIthat more than one Major Stockholder is an indemnifying party hereunder, the provisions of indemnified party may provide the notices and other communications required pursuant to this Section 8.4 shall control with respect 7.5 solely to the contest of tax mattersStockholders’ Representative. (b) If a Third Third-Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it promptly so chooseschooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided , provided, that such counsel has been consented is not reasonably objected to by the indemnified party, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 days following receipt of notice of a claim from the indemnified party shall be deemed to be a prompt response. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. However, notwithstanding the foregoing, if Eclipsys or any of its Affiliates is an indemnified party in connection with a Third-Party Claim involving any Company IP, any then current employee or other person filling a similar function, or any then current client or supplier (including the owner of any Intellectual Property then used in the Business), Eclipsys may control the defense, at the cost of the indemnifying party; provided, however, that in such event, that Eclipsys shall in good faith, and to the extent reasonably permitted by any applicable protective or confidentiality orders and subject to the maintenance of all applicable attorney-client and attorney work product privileges, provide updates to the indemnifying party (or if there is more than one indemnified party, the Stockholders’ Representative) to permit the indemnifying party to reasonably monitor and provide the indemnifying party the opportunity to provide input into material decisions affecting such claim and the handling thereof, including, as applicable, the potential settlement of such claim, and shall in good faith consider such input. (c) The indemnifying party shall be liable for the reasonable fees and expenses of counsel employed by the indemnified party in connection with a Third-Party Claim for any period during which the indemnifying party has failed to assume or is not entitled to assume the defense thereof; provided, however, that the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one local counsel, where applicable). In connection with any Third Third-Party Claim, the indemnified parties party and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's ’s request) the provision to such party of records and information which are reasonably relevant to such Third Third-Party Claim, and making employees (including persons filling a similar function) available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, including deposition or trial testimony. (d) If the indemnifying party shall have assumed the defense of a Third Third-Party Claim, the indemnifying party shall not agree to any settlementmay settle, compromise or discharge of such Third Third-Party Claim without the prior written consent of in good faith with the indemnified party’s prior written consent, which consent shall not be unreasonably withheldwithheld or delayed, provided however no consent of the indemnified party shall be required if such settlement, compromise or discharge discharge, by its terms terms, obligates the indemnifying party to pay the full amount of the liability in connection with such Third-Party Claim, releases the indemnified party completely in connection with such Third Third-Party Claim and would does not otherwise adversely affect the indemnified partyimpose any equitable remedies. If the indemnifying party shall not have assumed the defense of a Third Third-Party ClaimClaim or if the indemnified party assumes the defense thereof, the indemnified party may settle, compromise or discharge, discharge such Third Third-Party Claim in good faith without with the indemnifying party's ’s prior written consent, which consent shall not be unreasonably withheld or delayed. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound entitled to assume the defense of any Third-Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by any compromise, settlement the indemnified party in defending such Third-Party Claim) if: (i) the Third-Party Claim seeks an Order or discharge effected without its consentother equitable relief or relief for other than money damages against the indemnified party, which consent may the indemnified party reasonably determines, after conferring with its outside counsel, cannot be unreasonably withheldseparated from any related claim for money damages, or (ii) the indemnified party reasonably determines, after conferring with its outside counsel, that joint representation would be expected to give rise to a conflict of interest. Seller If such equitable relief or other relief portion of the Third-Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to participate in assume the defense of any such claim the portion relating to money damages. All claims under Section 7.2 other than Third-Party Claims shall be governed by Section 7.6. (f) Notwithstanding the foregoing, Eclipsys and Premise shall have the sole right to represent the interests of Premise in all Tax audits and administrative and court proceedings and to employ counsel of its choosing (not reasonably objected choice; provided, however, that, to by Buyerthe extent relating to Taxes for which the Major Stockholders are liable pursuant to Section 7.2(a), at the Stockholders’ Representative, in its own expensesole discretion, separate from shall have the counsel employed by Buyer. (f) In right to participate in or control any such proceeding and shall have full control over the resolution or settlement of any such matters; provided, that, in the event than that any such adjustment would have an indemnified party is required adverse effect on Premise for a period ending after the Closing Date, the Stockholders’ Representative (i) shall permit Eclipsys to incur legal fees participate in the proceeding to the extent the adjustment may affect the Tax liability of Premise for a period ending after the Closing Date and expenses as a result (ii) shall not settle or otherwise compromise such proceeding without the prior written consent of an indemnifying party's failureEclipsys, upon a request which consent shall not be unreasonably withheld or delayed. To the extent the Stockholders’ Representative does not assume full control over any such matters, Eclipsys shall use commercially reasonable efforts to defend positions taken on Tax Returns for indemnification, Taxes for which the Major Stockholders are liable pursuant to promptly respond under subsection (bSection 7.2(a) above as to whether or not and shall keep the indemnifying party is assuming the defense Stockholders’ Representative reasonably informed of the Third Party Claimprogress of any such proceedings and shall not settle or otherwise compromise such proceeding without prior written consent of the Stockholders’ Representative, then which shall not be unreasonably withheld or delayed. Eclipsys and the Stockholders’ Representative shall bear their own expenses incurred in connection with audits and other administrative judicial proceedings relating to Taxes for which such legal fees party and expenses may be included in any indemnification claim made by the indemnified party, provided that such actions were reasonably required in order for the indemnified party to avoid liability with respect to such matterits Affiliates are liable under Section 7.2(a).

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claim. Thereafter, the indemnified party shall deliver to the indemnifying party, within five Business Days after the indemnified party's receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. In the event the provisions of Section 8.4 are inconsistent with any provision of this Article VII, the provisions of Section 8.4 shall control with respect to the contest of tax matters. (b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it promptly so chooseschooses and acknowledges its obligation to indemnify the indemnified party therefore, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel has been consented is not reasonably object to by the indemnified party, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 days following receipt of notice of a claim from the indemnified party shall be deemed to be a prompt response. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. (c) In connection with any Third Party Claim, the indemnified parties and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's request) the provision to such party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying party shall not agree to any settlement, compromise or discharge of such Third Party Claim without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, provided however no consent of the indemnified party shall be required if such settlement, compromise or discharge by its terms releases the indemnified party completely in connection with such Third Party Claim and would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense of a Third Party Claim, the indemnified party may settle, compromise or discharge, such Third Party Claim in good faith without the indemnifying party's prior consent. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound by any compromise, settlement or discharge effected without its consent, which consent may not be unreasonably withheld. Seller shall be entitled to participate in the defense of any such claim and to employ counsel of its choosing (not reasonably objected to by Buyer), at its own expense, separate from the counsel employed by Buyer. (f) In the event than an indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming the defense of the Third Party Claim, then such legal fees and expenses may be included in any indemnification claim made by the indemnified party, provided that such actions were reasonably required in order for the indemnified party to avoid liability with respect to such matter.counsel

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a an indemnified party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the indemnified party (a "“Third Party Claim"”), such indemnified party must promptly notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claimfailure. Thereafter, the indemnified party shall promptly deliver to the indemnifying party, within five Business Days party after the indemnified party's ’s receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. In the event the provisions of Section 8.4 are inconsistent with any provision of this Article VII, the provisions of Section 8.4 shall control with respect to the contest of tax matters. (b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it promptly so chooseschooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel has been consented is not reasonably objected to by the indemnified partyparty and provided further, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 days following receipt of notice of a claim from that the indemnified party shall be deemed have the right, but not the obligation, to be a prompt responseassume such defense. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. (c) The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party in connection with a Third Party Claim for any period during which the indemnifying party has failed to assume the defense thereof. In connection with any Third Party Claim, the indemnified parties party and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's request) the provision to such party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying indemnified party shall not agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may reasonably recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim without the prior written consent of the indemnified partyClaim, which consent shall not be unreasonably withheld, provided however no consent of the indemnified party shall be required if such settlement, compromise or discharge by its terms releases the indemnified party completely in connection with such Third Party Claim and which would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense of a Third Party Claim, the indemnified party may settle, compromise or discharge, such Third Party Claim in good faith without the indemnifying party's ’s prior consent, so long as the settlement or compromise is made in good faith and is reasonable in amount given the nature of the Third Party Claim and the risk of an adverse ruling or judgment. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by any compromisethe indemnified party in defending such Third Party Claim) if: (i) the Third Party Claim seeks an order, settlement injunction or discharge effected without other equitable relief or relief for other than money damages against the indemnified party which the indemnified party reasonably determines, after conferring with its consentoutside counsel, which consent may cannot be unreasonably withheldseparated from any related claim for money damages, or (ii) the indemnified party reasonably determines, after conferring with its outside counsel, that joint representation would be expected to give rise to a conflict of interest. Seller If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to participate in the defense of any such claim and to employ counsel of its choosing (not reasonably objected to by Buyer), at its own expense, separate from the counsel employed by Buyer. (f) In the event than an indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming assume the defense of the portion relating to money damages. All claims under Section 5.2 other than Third Party Claim, then such legal fees Claims shall be governed by Section 5.5. Whenever insurance coverage is available and expenses may be included in any indemnification claim made counsel is provided and/or paid for by the indemnified partyinsurance carrier, provided the provisions stated above shall be modified such that such actions were reasonably required in order for the indemnified insurance coverage and/or payment shall satisfy the obligations of the indemnifying party as to avoid liability with respect to such mattersame.

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the indemnified such party (a "Third “Third-Party Claim"”), such indemnified party must promptly notify the indemnifying party in writing, and in reasonable detail, of the Third Third-Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Third-Party Claim; provided, however, that failure to give such notification shall will not affect the indemnification provided hereunder except to the extent that the indemnifying party shall have been is actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claimfailure. Thereafter, the indemnified party shall promptly deliver to the indemnifying party, within five Business Days party after the indemnified party's ’s receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Third-Party Claim. In the event the provisions of Section 8.4 are inconsistent with any provision of this Article VIIthat more than one Major Stockholder is an indemnifying party hereunder, the provisions of indemnified party may provide the notices and other communications required pursuant to this Section 8.4 shall control with respect 7.6 solely to the contest of tax mattersStockholders’ Representative. (b) If a Third Third-Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it promptly so chooseschooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; , provided that such counsel has been consented is not reasonably objected to by the indemnified party, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 days following receipt of notice of a claim from the indemnified party shall be deemed to be a prompt response. Should the indemnifying party so elect to assume the defense of a Third Third-Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. However, notwithstanding the foregoing, if Eclipsys or any of its Affiliates is an indemnified party in connection with a Third-Party Claim involving any then current employee, any then current client or supplier (including the owner of any Intellectual Property then used in the Business), Eclipsys may control the defense, at the cost of the indemnifying party, subject to reasonable input from the indemnifying party, with reasonableness determined by reference, among other things, to any conflicting interests between the indemnified party and indemnifying party. (c) The indemnifying party shall be liable for the reasonable fees and expenses of counsel employed by the indemnified party in connection with a Third-Party Claim for any period during which the indemnifying party has failed to assume or is not entitled to assume the defense thereof; provided, however, that the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one local counsel, where applicable). In connection with any Third Third-Party Claim, the indemnified parties party and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's ’s request) the provision to such party of records and information which are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, including deposition or trial testimony. (d) If the indemnifying party shall have assumed the defense of a Third Third-Party Claim, the indemnifying indemnified party shall not have the right to settle or compromise such claim, and shall agree to any settlement, compromise or discharge of such Third a Third-Party Claim without that the prior written consent of the indemnified party, indemnifying party may recommend and which consent shall not be unreasonably withheld, provided however no consent of the indemnified party shall be required if such settlement, compromise or discharge by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third-Party Claim, which releases the indemnified party completely in connection with such Third Third-Party Claim Claim, which does not impose any equitable remedies and which the indemnified party reasonably determines would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense of a Third Third-Party Claim, the indemnified party may settle, compromise or discharge, such Third Third-Party Claim in good faith without the indemnifying party's ’s prior consent. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound entitled to assume the defense of any Third-Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by any compromisethe indemnified party in defending such Third-Party Claim) if: (i) the Third-Party Claim seeks an Order or other equitable relief or relief for other than money damages against the indemnified party which the indemnified party reasonably determines, settlement or discharge effected without after conferring with its consentoutside counsel, which consent may cannot be unreasonably withheldseparated from any related claim for money damages, or (ii) the indemnified party reasonably determines, after conferring with its outside counsel, that joint representation would be expected to give rise to a conflict of interest. Seller If such equitable relief or other relief portion of the Third-Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to participate in assume the defense of any such claim the portion relating to money damages. All claims under Section 7.2 other than Third-Party Claims shall be governed by Section 7.7. (f) Notwithstanding the foregoing, Eclipsys and MediNotes shall have the sole right to represent the interests of MediNotes in all Tax audits and administrative and court proceedings and to employ counsel of its choosing choice (not reasonably objected and, to by Buyerthe extent relating to Taxes for which the Major Stockholders are liable pursuant to this Agreement, at the Major Stockholders’ expense); provided, however, that, to the extent relating to Taxes for which the Major Stockholders are liable pursuant to Section 7.2, the Stockholders’ Representative shall have the opportunity to participate, subject to the control of Eclipsys and MediNotes, at its own expensecost in any defense of such proceeding. Eclipsys and MediNotes shall not settle any Tax claim to the extent relating to Taxes for which the Major Stockholders are liable pursuant to Section 7.2 without the prior written consent of the Stockholders’ Representative, separate from which consent shall not be unreasonably withheld or delayed. If the counsel employed Stockholders’ Representative consents to any such settlement, neither the Stockholders’ Representative nor any Major Stockholder shall have any power or authority to object to the amount or validity of any claim by Buyer. (f) In the event than an or on behalf of any indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming the defense of the Third Party Claim, then such legal fees and expenses may be included in any indemnification claim made by the indemnified party, provided that such actions were reasonably required in order for the indemnified party to avoid liability indemnity with respect to such mattersettlement.

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a an indemnified party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the indemnified party (a "Third Party Claim"), such indemnified party must promptly notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify the nature of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claimfailure. Thereafter, the indemnified party shall promptly deliver to the indemnifying party, within five Business Days party after the indemnified party's receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. In the event the provisions of Section 8.4 are inconsistent with any provision of this Article VII, the provisions of Section 8.4 shall control with respect to the contest of tax matters. In the event that more than one Seller is an indemnifying party hereunder, the indemnified party may provide the notices and other communications required pursuant to this Section 7.6 solely to the Sellers' Representative (or such other person selected by the Sellers based on their Pro Rata Portion and provided in writing to the indemnified party). (b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it promptly so chooseschooses and acknowledges its obligation to indemnify the indemnified party therefore, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel has been consented is not reasonably objected to by the indemnified partyparty and provided further, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for that if the indemnified party reasonably believes that the Damages that will be recovered by such third parties may exceed the indemnification obligations of the indemnifying parties (giving effect to avoid liability or prejudice, a response the prior indemnification payments made by the indemnified party within 30 days following receipt of notice of a claim from indemnifying parties, other claims pending, and the limitations set forth in Section 7.4), then the indemnified party shall be deemed have the right, but not the obligation, to be a prompt responseassume such defense. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. (c) The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party in connection with a Third Party Claim for any period during which the indemnifying party has failed to assume the defense thereof. In connection with any Third Party Claim, the indemnified parties party and the indemnifying party shall cooperate with each other in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's request) the provision to such party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying indemnified party shall not agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim without the prior written consent of the indemnified partyClaim, which consent shall not be unreasonably withheld, provided however no consent of the indemnified party shall be required if such settlement, compromise or discharge by its terms releases the indemnified party completely in connection with such Third Party Claim and which would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense of a Third Party Claim, the indemnified party may settle, compromise or discharge, such Third Party Claim in good faith without the indemnifying party's prior consent. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall not be bound entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by any compromisethe indemnified party in defending such Third Party Claim) if: (i) the Third Party Claim seeks an order, settlement injunction or discharge effected without other equitable relief or relief for other than money damages against the indemnified party which the indemnified party reasonably determines, after conferring with its consentoutside counsel, which consent may cannot be unreasonably withheldseparated from any related claim for money damages, or (ii) the indemnified party reasonably determines, after conferring with its outside counsel, that joint representation would be expected to give rise to a conflict of interest. Seller If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to participate in the defense of any such claim and to employ counsel of its choosing (not reasonably objected to by Buyer), at its own expense, separate from the counsel employed by Buyer. (f) In the event than an indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming assume the defense of the portion relating to money damages. All claims under Section 7.2 other than Third Party Claim, then such legal fees and expenses may Claims shall be included in any indemnification claim made governed by the indemnified party, provided that such actions were reasonably required in order for the indemnified party to avoid liability with respect to such matterSection 7.7.

Procedures Relating to Indemnification Involving Third Party Claims. (a) In order for a an indemnified party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person not a party to this Agreement against the indemnified party (a "“Third Party Claim"”), such indemnified party must promptly notify the indemnifying party in writing, and in reasonable detail, writing of the Third Party Claim within 10 Business Days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure (except that failure. The notice of claim shall describe in reasonable detail the indemnifying party shall not be liable for any expenses incurred during the period in which facts known to the indemnified party failed giving rise to give such notice). Any notice of an indemnification claim involving a Third Party Claim shall specify claim, and the nature amount or good faith estimate of the claim in reasonable detail, the Persons making the claim and the estimated amount, if practicable, and shall be accompanied by any correspondence from the third party relating to the Third Party Claimamount arising therefrom. Thereafter, the indemnified party shall promptly deliver to the indemnifying party, within five Business Days party after the indemnified party's ’s receipt thereof, 50 copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. In the event the provisions of Section 8.4 are inconsistent with any provision of this Article VII, the provisions of Section 8.4 shall control with respect to the contest of tax Tax matters. In the event that more than one Seller is an indemnifying party hereunder, the indemnified party may provide the notices and other communications required pursuant to this Section 7.5 solely to the Sellers’ Representative. (b) If The Sellers’ Representative, on behalf of the Sellers (if the indemnified party is an Alon Indemnified Party), or Alon (if the indemnified party is a Third Party Claim is made against an indemnified partySeller Indemnified Party), the indemnifying party as applicable, shall be entitled to participate assume and control the defense of such Third Party Claim at its expense (or, in the defense thereof andcare of the Sellers’ Representative, at the expense of the Sellers) and through counsel of its choice if it promptly gives written notice of its intention to do so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided that such counsel has been consented to by the indemnified party, which consent shall not be unreasonably withheld. The parties acknowledge that, except where the claim reasonably requires an earlier action be taken for the indemnified party to avoid liability or prejudice, a response by the indemnified party within 30 calendar days following of the receipt of the notice of a claim from the indemnified party shall be deemed to be a prompt response. Should the indemnifying party so elect to assume the defense of a Third Party Claim, in which case the indemnifying party shall not be liable to the indemnified party for legal any fees of counsel or any other expenses subsequently incurred by with respect to the defense of such Third Party Claim; provided, however, that if the indemnified party reasonably determines based upon written advice of counsel that a conflict of interest exists that would make it inappropriate for the same counsel to represent both the indemnified party and the indemnifying party, then the indemnified party shall be entitled to retain its own counsel at the expense of the indemnifying party; provided, further, that the indemnifying party shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel in connection with any Third Party Claim in the same jurisdiction, in addition to one firm of local counsel. In the event that the Sellers’ Representative or Alon exercises the right to undertake any such defense thereof. If the indemnifying party assumes against such defenseThird Party Claim as provided above, the indemnified party shall have cooperate with the right Sellers’ Representative or Alon, as applicable, in such defense and make available to participate in the defense thereof and to employ counsel (not reasonably objected to by Sellers’ Representative or Alon, as applicable, at the indemnifying party), at its own ’s expense, separate from all witnesses, pertinent records, materials and information in the counsel employed indemnified party’s possession or under the indemnified party’s control relating thereto as is reasonably requested by or on behalf of the indemnifying party. Similarly, it being understood that in the indemnifying party shall control such defense. (c) In connection with any Third Party Claim, event the indemnified parties and the indemnifying party shall cooperate with each other in is, directly or indirectly, conducting the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnified or indemnifying party's request) the provision to against any such party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying party shall not agree cooperate with the indemnified party in such defense and make available to any settlementthe indemnified party, at the indemnifying party’s expense, all such witnesses, records, materials and information in the indemnifying party’s possession or under the indemnifying party’s control relating thereto as is reasonably requested by the indemnified party. (c) No compromise or discharge settlement of such Third Party Claim may be effected by either the indemnified party, on the one hand, or the Sellers’ Representative (if the indemnified party is an Alon Indemnified Party) or Alon (if the indemnified party is a Seller Indemnified Party), on the other hand, without the prior consent of the other (which shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, the Sellers’ Representative (if the indemnified party is an Alon Indemnified Party) or Alon (if the indemnified party is a Seller Indemnified Party) may pay, settle or compromise a Third Party Claim without the written consent of the indemnified party, which consent shall not be unreasonably withheld, provided however no consent so long as such settlement includes (i) an unconditional release of the indemnified party shall be required if such settlement, compromise or discharge by its terms releases the indemnified party completely from all Liability in connection with such Third Party Claim and would not otherwise adversely affect the indemnified party. If the indemnifying party shall not have assumed the defense respect of a Third Party Claim, the indemnified party may settle, compromise or discharge, such Third Party Claim in good faith without the indemnifying party's prior consent. (e) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that the outcome of a Third Party Claim may adversely affect it or its Affiliates, other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the right to defend, compromise or settle such Third Party Claim, but the indemnifying party shall (ii) does not be bound by any compromise, settlement or discharge effected without its consent, which consent may not be unreasonably withheld. Seller shall be entitled to participate in the defense of any such claim and to employ counsel of its choosing (not reasonably objected to by Buyer), at its own expense, separate from the counsel employed by Buyer. (f) In the event than an indemnified party is required to incur legal fees and expenses as a result of an indemnifying party's failure, upon a request for indemnification, to promptly respond under subsection (b) above as to whether or not the indemnifying party is assuming the defense of the Third Party Claim, then such legal fees and expenses may be included in any indemnification claim made by the indemnified party, provided that such actions were reasonably required in order for subject the indemnified party to avoid liability with respect any injunctive relief or other equitable remedy, and (iii) does not include a statement or admission of fault, culpability or failure to such matteract by or on behalf of any indemnified party.