Common use of Third Party Claims Clause in Contracts

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Stock Purchase Agreement (Nautilus, Inc.)

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Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third "Third-Party Claim") is made against any person a Seller Indemnified Party or entity entitled to indemnification pursuant to Section 8.2 hereof Buyer Indemnified Party (collectively, an "Indemnified Party"), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIX, such Indemnified Party shall promptly notify in writing the indemnifying party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that, that the failure to so promptly notify shall the indemnifying party will not relieve the Responsible Party indemnifying party of its obligations hereunderany liability it may have to the indemnified party, except to the extent that the Responsible indemnifying party demonstrates that the defense of such Third-Party Claim is actually and materially prejudiced therebyby the indemnified party's failure to give notice within such time period. The Responsible Party indemnifying party shall have 15 30 days after receipt of such notice to assume the undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that the Responsible Party indemnifying party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party. If the indemnifying party so chooses to assume the defense it shall do so promptly 49 and diligently. So long as the Responsible Party indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that that, in such event event, it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldindemnifying party. If the Responsible Party indemnifying party does not notify the Indemnified Party in writing within 15 30 days after the receipt of the Indemnified Party’s 's written notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party indemnifying party shall not, except with the written consent of the Indemnified Party, enter into any settlement unless (A) there is no finding or admission of any violation of Applicable Law, (B) the sole relief provided is monetary damages that does not include as an unconditional term thereof the giving are paid in full by the person indemnifying party, (C) the indemnified party or persons asserting its Affiliates shall have no liability with respect to any compromise or settlement of such claim Third-Party Claim, and (D) the compromise or settlement provides to all Indemnified Parties of indemnified parties and their Affiliates and agents an unconditional release from all liability with respect to such claim Third-Party Claim or consent the facts underlying such Third-Party Claim. With respect to entry any Third-Party Claim subject to indemnification under this Article X, (i) both the Indemnified Party and the indemnifying party, as the case may be, shall keep the other party reasonably informed of the status of such Third-Party Claim and any related proceedings at all stages thereof, (ii) the parties agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any judgmentThird-Party Claim and (iii) with respect to any Third-Party Claim subject to indemnification under this Article X, the parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information and the attorney-client and work-product privileges.

Appears in 1 contract

Samples: Liability Assumption Agreement (National Australia Bank LTD)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Indemnifying Party shall have the right to pay assume and pursue the defense of any Third Party Claim involving solely monetary damages (and does not, and would not reasonably be expected to, result in criminal liability of, or settle any such claimequitable remedies against, provided that in such event it shall waive any right the Indemnified Party), at its sole cost and expense and with counsel reasonably satisfactory to indemnity therefor by the Responsible Party or from the Escrow AccountIndemnified Party, as the case may be, for such claim unless the Responsible Party shall have consented upon notification thereof to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days ten (10) Business Days after the receipt Indemnity Claim Notice has been delivered to the Indemnifying Party; provided, however, that if the Indemnifying Party’s assumption of the defense of any Third Party Claim would (as described in a written opinion of counsel to the Indemnified Party or the Indemnifying Party) result in a conflict of interest arising out of the joint representation by counsel selected by the Indemnifying Party of the interests of both the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be entitled to engage separate counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party (at the Indemnifying Party’s sole cost and expense) and, if the Indemnifying Party fails to do so during the ten (10) Business Day period referred to above, the Indemnifying Party shall not be entitled to assume the Indemnified Party’s notice defense of such Third Party Claim. It is agreed and understood that the Indemnifying Party’s election to assume the defense of any Third Party Claim shall not constitute an admission that any Losses resulting therefrom are indemnifiable Losses under this Article VIII or in any way prejudice or limit the Indemnifying Party’s ability to dispute any determination of whether or not any such Losses are indemnifiable Losses under this Article VIII. If: (i) the Indemnified Party does not receive notification from the Indemnifying Party of its assumption of the defense of a claim of indemnity hereunder that it elects Third Party Claim within the ten (10) Business Day time period referred to undertake above; (ii) the Indemnifying Party is not entitled to assume the defense thereofof a Third Party Claim as described above in this Section 8.5; or (iii) at any time after the Indemnifying Party has assumed the defense of a Third Party Claim, the Indemnifying Party fails to perform or unreasonably delays in performing its obligations to assume or pursue the defense of such Thirty Party Claim, the Indemnified Party shall have fully assume, commence and pursue its defense of such Third Party Claim on a timely and prudent basis and thereafter promptly inform the right to contest, settle or compromise Indemnifying Party of all material developments related thereto and the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with pay the consent reasonable fees and disbursements of such counsel for the Indemnified Party, enter into any settlement that does not include Party as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentincurred.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Earthlink Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIIIX, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified partyand, if applicable, the “Responsible Party”) Escrow Agent of such claims; provided, provided that the failure to so notify shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 one hundred and eighty (180) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Indemnifying Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that (i) the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified PartyParty and (ii) the Indemnifying Party shall promptly assume and hold such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, but subject to Section 6.3 hereof, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying -43- 48 Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Article IX and does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. Notwithstanding any of the foregoing, in the event that the Indemnified Party is a Purchaser Indemnitee and it is reasonably foreseeable that the amount of any Loss to be incurred by the Indemnified Party with respect to any third party claim is more than twice the amount indemnifiable by any Indemnifying Party, the Indemnified Party shall be entitled to conduct and control the defense and/or settlement of any such claim without the consent of the Indemnifying Party.

Appears in 1 contract

Samples: Acquisition Agreement (Global Power Equipment Group Inc/)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third Person who is not a party or an Affiliate thereof (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIVII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) Stockholder Representative of such claims; provided, provided that the failure to so notify the Stockholder Representative shall not relieve the Responsible Party Indemnifying Parties of its obligations hereunder, except to the extent that the Responsible Party Indemnifying Parties is actually and materially prejudiced thereby. The Responsible Party Such notice shall have 15 days after receipt identify specifically the basis under which indemnification is sought under this Agreement and enclose true and correct copies of such notice to assume the conduct and control, through counsel reasonably acceptable any written document furnished to the Indemnified Party at by the expense Person that instituted the Third Party Claim. The Indemnified Party shall assume the defense of the Responsible Party, such Third Party Claim with counsel of the settlement or defense thereof, reputable standing and the Indemnified Party shall cooperate with it Party’s reasonable fees and expenses (including reasonable fees and expenses of counsel) in connection therewithwith such defense will be borne by the Indemnifying Parties subject to the limitations in this Article VII; provided, provided that the Responsible Party Stockholder Representative shall permit be entitled to consult with the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Partydefense. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the The Indemnified Party shall have the right to pay or settle any such claimThird Party Claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnified Party shall have consented consult with the Stockholder Representative prior to making any such payment or settlement; provided, which consent will further, that any such payment or settlement shall not be unreasonably withhelddeterminative of the existence, or amount, of any Losses recoverable by the Indemnified Parties from the Indemnifying Parties under this Agreement. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects fails to undertake assume the defense thereof; of any such Third Party Claim in accordance with the Indemnified Party foregoing, then the Stockholder Representative shall have the right to contestassume the defense thereof upon written notice to the Indemnified Party. If the Stockholder Representative shall have assumed the defense of any Third Party Claim, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party Stockholder Representative shall not, except with the consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons Person(s) asserting such claim Third Party Claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim Third Party Claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Select Comfort Corp)

Third Party Claims. In the event we reimburse you for a refund claim you have made, or if we otherwise provide you with a credit or payment with respect to any problem arising out of any transaction made with the Card, you are automatically deemed to assign and transfer to us any rights and claims (aexcluding tort claims) If a claimthat you have, action, suit had or proceeding by a may have against any third party for an amount equal to the amount we have paid to you or credited to your Card. You agree that you will not pursue any claim against or reimbursement from such third party for the amount that we paid or credited to your Card, and that you will cooperate with us if we decide to pursue the third party for the amount paid or credited to you. If we do not exercise our rights under this section, we do not give up our rights to exercise them in the future. Disclaimer of Warranties: EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO YOU, WHETHER EXPRESS OR IMPLIED, REGARDING ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. Limitation of Liability: EXCEPT AS EXPRESSLY REQUIRED BY THIS AGREEMENT OR APPLICABLE LAW, WE WILL NOT BE LIABLE TO YOU FOR PERFORMING OR FAILING TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT UNLESS WE HAVE ACTED IN BAD FAITH. WITHOUT LIMITING THE FOREGOING, WE WILL NOT BE LIABLE TO YOU FOR DELAYS OR MISTAKES RESULTING FROM ANY CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOVERNMENTAL AUTHORITIES, NATIONAL EMERGENCIES, INSURRECTION, WAR, RIOTS, FAILURE OF MERCHANTS TO PERFORM OR PROVIDE SERVICES, FAILURE OF COMMUNICATION SYSTEMS, OR FAILURES OF OR DIFFICULTIES WITH OUR EQUIPMENT OR SYSTEMS. ALSO WITHOUT LIMITING THE FOREGOING, WE WILL NOT BE LIABLE TO YOU FOR ANY DELAY, FAILURE OR MALFUNCTION ATTRIBUTABLE TO YOUR EQUIPMENT, ANY INTERNET SERVICE, ANY PAYMENT SYSTEM OR ANY CUSTOMER SERVICE FUNCTION. IN THE EVENT THAT WE ARE HELD LIABLE TO YOU, YOU WILL ONLY BE ENTITLED TO RECOVER YOUR ACTUAL AND DIRECT DAMAGES. IN NO EVENT WILL YOU BE ENTITLED TO RECOVER ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES (a “Third Party Claim”) WHETHER IN CONTRACT, TORT, OR OTHERWISE), EVEN IF YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES. Website and Availability: Although considerable effort is made against any person or entity entitled to indemnification pursuant ensure that our Website and other operational and communications channels available around the clock, we do not warrant these channels to Section 8.2 hereof (an “Indemnified Party”), be available and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, error free at all times. You agree that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent we will not be unreasonably withheldresponsible for temporary interruptions in service due to maintenance, website changes, or failures, nor will we be liable for extended interruptions due to failures beyond our control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, labour disputes and armed conflicts. If We will not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses that may affect your computer or other equipment. You agree to act responsibly with regard to the Responsible Party does Website and its use. You will not notify violate any laws, interfere or disrupt computer networks, impersonate another person or entity, violate the Indemnified Party within 15 days after the receipt rights of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestany third party, settle stalk, threaten or compromise the claimharass anyone, at the expense of the Responsible Partygain any unauthorized entry, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except or interfere with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentWebsite’s systems and integrity.

Appears in 1 contract

Samples: Cardholder Agreement

Third Party Claims. The obligations and liabilities of a party from which indemnification is sought (aan "indemnifying party") by a party seeking indemnification (an "indemnified party") under this Article 11 with respect to claims resulting from the assertion of Damages by those not parties to this Agreement shall be subject to the following conditions: (i) The indemnified party shall give prompt written notice to the indemnifying party of the nature of the assertion of Damages by a third party and the amount thereof to the extent known, provided that the failure to give such notice shall not release the indemnifying party from its obligations hereunder unless such failure materially prejudices the indemnifying party's ability to defend the claim; (ii) If a claim, any action, suit or proceeding (a "Legal Action") is brought by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified indemnified party, the “Responsible Party”) Legal Action shall be defended by the indemnifying party and such defense shall include all appeals or reviews which counsel for the indemnifying party shall deem appropriate. Until the indemnifying party shall have assumed the defense of any such claims; providedLegal Action, or if the indemnified party shall have reasonably concluded that there are likely to be defenses available to the failure indemnified party that are different from or in addition to so notify those available to the indemnifying party (in which case the indemnifying party shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice be entitled to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense defense of the Responsible Party, of the settlement or defense thereof, such Legal Action and the Indemnified Party shall cooperate with it in connection therewith; provideddefense may be handled by the indemnified party at its sole expense), that all legal or other expenses reasonably incurred by the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel indemnified party shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting indemnifying party; (iii) In any such claim in good faith, Legal Action initiated by a third party and defended by the Indemnified Party shall not pay or settle any such claim. Notwithstanding indemnifying party (w) the foregoing, the Indemnified Party indemnified party shall have the right to pay be represented by advisory counsel and accountants, at its own expense, (x) the indemnifying party shall keep the indemnified party fully informed as to the status of such Legal Action at all stages thereof, whether or settle not the indemnified party is represented by its own counsel, (y) the indemnified party shall make available to the indemnifying party, and its attorneys and accountants, all books and records of the indemnified party relating to such Legal Action and (z) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of such Legal Action; (iv) In any such claim, provided that in such event it shall waive any right to indemnity therefor Legal Action initiated by a third party and defended by the Responsible Party or from indemnifying party, the Escrow Account, as indemnifying party shall not make any settlement of any claim without the case may be, for such claim unless written consent of the Responsible Party shall have consented to such payment or settlementindemnified party, which consent will shall not be unreasonably withheld. If Without limiting the Responsible Party does not notify the Indemnified Party within 15 days after the receipt generality of the Indemnified Party’s notice of foregoing, it shall not be deemed unreasonable to withhold consent to a claim of indemnity hereunder that it elects settlement involving injunctive or other equitable relief against the indemnified party or its assets, employees or business. (v) In any Legal Action initiated by a third party in which the indemnifying party is not entitled to undertake assume the defense thereof; and the Indemnified Party indemnified party handles the Legal Action as provided in Section 11.3(ii), (w) the indemnifying party shall have the right to contest, settle or compromise the claimbe represented by advisory counsel and accountants, at its own expense, (x) the expense indemnified party shall keep the indemnifying party fully informed as to the status of such Legal Action at all stages thereof, whether or not the Responsible Partyindemnifying party is represented by its own counsel, but (y) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of such Legal Action, and (z) the indemnified party shall not thereby waive make any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with settlement of any claim without the written consent of the Indemnified Partyindemnifying party, enter into any settlement that does which consent shall not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentbe unreasonably withheld. 11.4.

Appears in 1 contract

Samples: Asset Purchase Agreement (Osullivan Corp)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person a Seller Indemnified Party or entity entitled to indemnification pursuant to Section 8.2 hereof a Buyer Indemnified Party (an "Indemnified Party"), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIX, such Indemnified Party shall promptly notify the indemnifying party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the . The failure to so notify provide such notice shall not relieve the Responsible Party result in a waiver of its obligations hereunder, any right to indemnification hereunder except to the extent that the Responsible Party indemnifying party is actually and materially prejudiced therebyby such failure. The Responsible Party -55- 62 indemnifying party shall have 15 30 days after receipt of such notice to assume the undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that (a) the Responsible Party indemnifying party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, ; provided that the fees and expenses of such counsel shall be borne by such Indemnified PartyParty and (b) the indemnifying party shall promptly assume and hold such Indemnified Party harmless from and against the full amount of any Covered Liability resulting therefrom. So long as the Responsible Party indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, ; provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldindemnifying party. If the Responsible Party indemnifying party does not notify the Indemnified Party within 15 30 days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party Indemnifying party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Stock Purchase Agreement (Lear Corp /De/)

Third Party Claims. (ai) If any Person entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any Proceeding by any Person who is not a claim, action, suit party hereto or proceeding by an Affiliate of a third party hereto (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall with respect to which a party hereto is or may be borne by such Indemnified required to provide indemnification under this Agreement (an “Indemnifying Party. So long as the Responsible Party is reasonably contesting any such claim in good faith”), the Indemnified Party shall not pay or settle any give written notice regarding such claim (a “Claims Notice”) to the Indemnifying Party within 30 days after becoming aware of such claim. Notwithstanding The Indemnifying Party shall have the foregoingright, which shall be exercised by delivering written notice to the Indemnified Party (the “Defense Notice”) within 30 days after receipt from the Indemnified Party of a Claim Notice, which Defense Notice shall specify the counsel it will appoint to defend such claim, to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to pay or settle any approve such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementdefense counsel, which consent will approval shall not be unreasonably withheldwithheld or delayed. If the Responsible Party does not notify An Indemnifying Party’s delivery of a Defense Notice shall constitute an acceptance of its obligation hereunder to indemnify the Indemnified Party within 15 days after with respect to all Losses, if any, resulting from the receipt subject Third Party Claim. A failure by an Indemnified Party to give timely, complete or accurate notice as provided in this Section 11.4(a)(i) will not affect the rights or obligations of any Indemnified Party unless the Indemnifying Party is materially prejudiced thereby (so long as a valid Claims Notice is given before the expiration of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects applicable period set forth in Section 11.1). Notwithstanding any provision contained herein to undertake the defense thereof; contrary, the Indemnified 57 Indemnifying Party shall not have the right to contest, settle or compromise assume control of such defense and shall pay the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of reasonable costs and expenses incurred by the Indemnified Party, enter into any settlement if the claim over which the Indemnifying Party seeks to assume control (i) seeks non-monetary relief, (ii) involves criminal allegations, (iii) involves a Material Customer, (iv) involves a Material Supplier that does not include as an unconditional term thereof has material interaction with the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.Company’s customers,

Appears in 1 contract

Samples: Membership Interest Purchase Agreement

Third Party Claims. (a) If a claim, action, suit In the event that any claim or proceeding demand for which an Indemnifying Party may be liable to an Indemnified Party hereunder is asserted against or sought to be collected by a third party (a “Third from an Indemnified Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”"Asserted Liability"), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such the Indemnified Party shall promptly as soon as possible notify the party obligated to indemnify Indemnifying Party in writing of such Asserted Liability, specifying the nature of such Asserted Liability (the "Claim Notice"); provided that no delay on the part of the Indemnified Party (in giving any such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify Claim Notice shall not relieve the Responsible Indemnifying Party of its obligations hereunder, any indemnification obligation hereunder except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced therebyby such delay. The Responsible Indemnifying Party shall have 15 60 days after (or less if the nature of the Asserted Liability requires) from its receipt of such notice the Claim Notice to assume the conduct and control, through counsel reasonably acceptable to notify the Indemnified Party whether or not the Indemnifying Party desires, at the Indemnifying Party's sole cost and expense and by counsel of its own choosing, to defend against such Asserted Liability; provided, however, that if, under applicable standards of professional conduct a conflict on any significant issue between the Responsible PartyIndemnifying Party and any Indemnified Party exists in respect of such Asserted Liability, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one additional counsel. If the settlement or defense thereofIndemnifying Party undertakes to defend against such Asserted Liability, and the Indemnified Party shall cooperate fully with it the Indemnifying Party and its counsel in connection therewith; providedthe investigation, that defense and settlement thereof, but the Responsible Indemnifying Party shall permit control the investigation, defense and settlement thereof. If the Indemnified Party desires to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithdefense, it may do so at its sole cost and expense. If the Indemnified Indemnifying Party shall elects not pay or settle any to defend against such claim. Notwithstanding Asserted Liability, then the foregoing, the Indemnified Indemnifying Party shall have the right to pay or settle participate in any such claimdefense at its sole cost and expense, provided that in such event it shall waive any right to indemnity therefor by but the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnified Party shall have consented to such payment or settlementcontrol the investigation, defense and settlement thereof at the sole cost and expense of the Indemnifying Party. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent will shall not be unreasonably withheld. If the Responsible Party does not notify ), consent to any settlement unless such settlement (i) includes a complete release of the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; and (ii) does not require the Indemnified Party shall have the right to contest, settle admit any Liability or compromise the claim, at the expense of the Responsible Party, but make or forego any payment or forego or take any action. The Indemnifying Party shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into be liable for any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentAsserted Liability effected without its prior written consent (which consent shall not be unreasonably withheld).

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Marathon Oil Corp)

Third Party Claims. (a) If a claim, action, suit or proceeding by a any third party shall notify any party with respect to any matter (a “Third Party Claim”) is made which may give rise to a claim for indemnification against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto other party under this Article VIIIIX, such then the Indemnified Party shall as promptly as reasonably practicable, and in any event within twenty (20) days of notice thereof, notify the party obligated to indemnify such Indemnified each Indemnifying Party (such notified party, the “Responsible Party”) of such claimsthereof in writing; provided, however, that (i) if the Indemnifying Party is Parent and/or Seller, the Indemnified Party need only notify Seller, and (ii) the failure to so notify give notice as herein provided shall not relieve the Responsible Indemnifying Party of its obligations hereunder, obligation to indemnify the Indemnified Party except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 days after receipt of been materially prejudiced in its ability to defend such notice claim. Subject to Section 9.06(b), the Indemnifying Party will have the right at its expense to assume and thereafter conduct the conduct and control, through defense of the Third Party Claim with counsel of its choice of recognized standing reasonably acceptable satisfactory to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall reasonably cooperate with it to the extent reasonably requested by the Indemnifying Party in the defense or prosecution thereof and shall furnish such records, information (that are under its control) and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith; provided, that in each case, at the Responsible Indemnifying Party’s expense. If the Indemnifying Party shall permit is entitled to, and so elects to, assume the defense of such claim, the Indemnified Party shall have the right to participate employ its own counsel in any such settlement or defense through counsel chosen by such Indemnified Partycase, provided, that but the fees and expenses of such counsel shall be borne by such at the expense of the Indemnified Party. So If the Indemnifying Party is entitled to and has assumed the defense of any claim against the Indemnified Party, for so long as the Responsible Indemnifying Party is reasonably contesting diligently defending such claim, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder only upon receiving the Indemnified Party’s prior written consent (such claim in good faithconsent not to be unreasonably withheld, conditioned or delayed) except if, pursuant to or as a result of such settlement, the Indemnified Party shall not pay or settle any is expressly and unconditionally released (including for these purposes, the Company Entities) in writing from all Liabilities and obligations with respect to such claimclaim with prejudice. Notwithstanding anything to the foregoingcontrary herein, if the Indemnifying Party does not assume the defense of a Third Party Claim, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by assume control of the Responsible Party or from the Escrow Account, as the case may be, for defense of such claim unless through counsel of its choice, the Responsible Party cost of which shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If at the Responsible Party does not notify Indemnifying Party’s expense in the Indemnified Party within 15 days after the receipt of event that the Indemnified Party’s notice right of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestindemnification is ultimately established through settlement, settle compromise or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentappropriate proceeding.

Appears in 1 contract

Samples: Stock Purchase Agreement (SMART Global Holdings, Inc.)

Third Party Claims. (a) If a claim, action, suit or proceeding by In the event Parent becomes aware of a third party claim (a “Third Party Claim”) is made against any person or entity entitled to which Parent reasonably believes may result in a claim for indemnification pursuant to Section 8.2 hereof this Article VIII, Parent shall promptly notify the Stockholder Representative of such claim with an Indemnification Claim Notice (an a Indemnified PartyThird Party Notice”), and shall provide a copy of such Third Party Notice to the Escrow Agent if prior to the Indemnity Escrow Expiration Date and any Indemnity Escrow Cash remains available in escrow for indemnification, and the Third Party Notice shall be accompanied by copies of any documentation submitted by the third party making such Third Party Claim (except that Parent may exclude from the Third Party Notice and accompanying materials such communications with its legal counsel to the extent that legal counsel to Parent advises that providing such communication could result in the loss of any attorney-client privilege or right under the work-product doctrine of Parent or any Parent Indemnified Party intends to seek indemnity with in respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claimsclaim, after giving due consideration to any “community of interest” or similar privilege, if any); provided, that no delay or failure on the failure part of Parent in delivering a Third Party Notice shall cause any Parent Indemnified Party to so notify shall not relieve the Responsible Party of its obligations hereunder, forfeit any indemnification rights under this Article VIII except to the extent that the Responsible Party is Company Indemnitors are actually and materially prejudiced therebyby such delay or failure. The Responsible Upon receipt of a Third Party Notice, the Stockholder Representative shall be entitled (on behalf of the Company Indemnitors and at their expense) to participate in, but not to control, determine or conduct, the defense (including any settlement or compromise) of such Third Party Claim. Parent shall have 15 days after receipt of such notice the right in its sole discretion to assume conduct the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereofof, and to settle, any such claim and the Indemnified Stockholder Representative shall not be entitled to control any negotiation of settlement, adjustment or compromise with respect to any such Third Party shall cooperate with it in connection therewithClaim; provided, that except with the Responsible Party shall permit express written consent of the Indemnified Party Stockholder Representative (such consent not to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible , conditioned or delayed), no settlement, adjustment or compromise of any such Third Party does not notify the Indemnified Party within 15 days after the receipt Claim with third party claimants shall be determinative of the Indemnified Party’s notice amount of a claim of indemnity hereunder Losses relating to such matter; provided, further, that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability Stockholder Representative with respect to such claim any settlement, adjustment or consent to entry compromise of any judgmentsuch Third Party Claim shall be deemed to have been given unless the Stockholder Representative shall have objected within thirty (30) days after a written request for such consent by Parent. In the event that the Stockholder Representative has consented to any such settlement, adjustment or compromise in accordance with this Section 8.5, the Company Indemnitors shall have no power or authority to object under any provision of this Article VIII to the amount of such settlement, adjustment or compromise.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Procore Technologies, Inc.)

Third Party Claims. (a) If a Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding by a of any third party (a “Third Party Claim”) which is made against any person or entity entitled subject to indemnification pursuant to Section 8.2 hereof hereunder, such party (an “the "Indemnified Party”), and if ") shall give written notice of such Indemnified Party intends claim to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party provide indemnification hereunder (such notified partythe "Indemnifying Party"), stating the “Responsible Party”) nature and basis of such claimsclaim and the amount thereof, to the extent known. The Indemnifying Party shall be entitled to defend any such indemnified matter, so long as it chooses counsel that is reasonably satisfactory to the Indemnified Party; provided, that the failure to so notify Indemnifying Party shall not relieve settle or compromise any such claim that may have an adverse effect on the Responsible Indemnified Party (or if the Indemnifying Party is the Seller, on the Companies), without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party elects to assume the defense of, negotiate, settle or otherwise deal with any claim which relates to any Losses indemnified against hereunder, the Indemnifying Party shall within 15 business days of receipt of written notice of the assertion of a claim notify in writing the Indemnified Party of its obligations intent to do so. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any claim which relates to any Losses indemnified against hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay may defend against, negotiate, settle, or settle any otherwise deal with such claim. Notwithstanding If the foregoingIndemnifying Party fails to notify the Indemnified Party of its election as herein provided or the Indemnifying Party contests its obligation to indemnify the Indemnified Party for such Losses under this Agreement, the Indemnified Party shall have may defend against, negotiate, settle or otherwise deal with such claim. The Indemnified Party may participate in the right to pay or settle any defense of such claim, provided that in at its own expense, if the Indemnifying Party undertakes such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible defense. The Indemnifying Party shall have consented to reasonably cooperate in any such payment defense or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify settlement and give the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim full access to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentinformation relevant thereto.

Appears in 1 contract

Samples: Sale and Purchase Agreement (Ocallaghan Barry)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity Person entitled to indemnification pursuant to Section 8.2 9.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII9, such Indemnified Party shall promptly (and in any event within ten (10) Business Days after receiving notice of the Third-Party Claim) notify the party Party obligated to indemnify such Indemnified Party (or, in the case of a Buyer Indemnitee seeking indemnification, such Buyer Indemnitee shall promptly notify Buyer (if such Buyer Indemnitee is not Buyer), and Buyer shall promptly notify the Seller Representative, in each case and in any event within ten (10) Business Days after receiving notice of the Third-Party Claim) (such notified partyparty including, in the case of the Seller Representative, any Sellers that are so obligated, the “Responsible Party”) of such claimsThird Party Claim; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereofof such Third Party Claim, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall be reasonably creditworthy with respect to the full amount of the Losses reasonably expected to be incurred by any Indemnified Party in connection with such Third Party Claim unless the amount of such Losses is less than the Indemnity Escrow Funds available at such time; provided, further, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, Party (it being understood that the fees fees, costs and expenses of such counsel shall be borne by such Indemnified Party. So long as ); provided, further, that notwithstanding anything herein to the contrary, the Responsible Party shall not have the right to assume control of such defense, if the claim for which the Responsible Party seeks to assume control (i) is one in which the Responsible Party is reasonably contesting also a party and for which joint representation would be inappropriate or there may be one or more legal defenses or counterclaims available to the Indemnified Party that are materially different from or materially additional to those available to the Responsible Party, in the reasonable judgment of the Indemnified Party after consulting with outside counsel or (ii) the Third Party Claim seeks nonmonetary relief which, if granted, could materially and adversely affect the Indemnified Party or its Affiliates (and in such case of this clause (ii) the Indemnified Party may elect to assume such defense). The Responsible Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim Third Party Claim or ceasing to defend against such Third Party Claim (with such approval not to be unreasonably conditioned or withheld); provided, however, that if the Responsible Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Responsible Party may recommend and that by its terms obligates the Responsible Party to pay the full amount of the liability in good faithconnection with such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Responsible Party assumes the defense of a Third Party Claim, the Indemnified Party shall not pay admit any liability with respect to, or settle any settle, compromise or discharge, such claimThird Party Claim without the Responsible Party’s prior written consent (which shall not be unreasonably withheld). Notwithstanding If the foregoingResponsible Party does not or cannot assume the defense of such Third Party Claim as provided in this Section 9.3(a), then the Indemnified Party shall have the right to pay or settle any such claimconduct and control, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Accountthrough counsel of its choosing, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; of such Third Party Claim (other than during any period in which the Indemnified Party shall have failed to give notice of the right to contestThird Party Claim as provided in this Section 9.3(a)). In the event that the Indemnified Party controls the defense of a Third Party Claim, settle or compromise it shall obtain the claim, at the expense prior written approval of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter before entering into any settlement that does of such Third Party Claim or ceasing to defend against such Third Party Claim (with such approval not include as an unconditional term thereof to be unreasonably conditioned or withheld). To the giving by extent required under the person or persons asserting such claim R&W Insurance, the insurer under the R&W Insurance and its agents and advisors shall be permitted to all Indemnified Parties of an unconditional release from all liability associate effectively with respect any Party to such claim or consent to entry this Agreement in the defense of any judgmentmatter which constitutes Loss (as defined in the R&W Insurance). Whether or not the Responsible Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Appears in 1 contract

Samples: Unit Purchase Agreement (White Mountains Insurance Group LTD)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 30 business days after receipt of the notice referred to in Section 10.3 to notify the Indemnified Party that it elects to conduct and control such notice action or suit and that it agrees to assume comply with clauses (i) through (iv) of this Section 10.4. If the Indemnifying Party does not give the foregoing notice, the Indemnified Party shall have the right to defend, contest, settle or compromise such action or suit in the exercise of its reasonable discretion, and the Indemnifying Party shall, upon request from the Indemnified Party, promptly pay to such Indemnified Party in accordance with the other terms of this Section 10 the amount of any Losses and Expenses for which indemnification is provided hereunder. If the Indemnifying Party gives the foregoing notice, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the sole expense of the Responsible Indemnifying Party, of the defense, contest, settlement or defense thereofcompromise of such action or suit, and the Indemnified Party shall cooperate with it the Indemnifying Party in connection therewith; providedprovided that (i) the Indemnifying Party shall not thereby permit to exist any Encumbrance upon any asset of the Indemnified Party; (ii) the Indemnifying Party shall not consent to any defense, contest, settlement or compromise that does not include as an unconditional term thereof the Responsible giving of a complete release from liability with respect to such action or suit to the Indemnified Party; (iii) the Indemnifying Party shall permit the Indemnified Party to participate in such defense, contest, settlement or defense compromise through counsel chosen by such the Indemnified Party, provided, that but the fees and expenses of such counsel shall be borne by the Indemnified Party except as provided in clause (iv) below; and (iv) the Indemnifying Party shall agree promptly to reimburse the Indemnified Party for the amount of any Losses resulting from such action or suit and all related Expenses incurred by the Indemnified Party, including reasonable fees and expenses of counsel for the Indemnified Party incurred after giving the foregoing notice to the Indemnifying Party and prior to the assumption of the conduct and control of such action or suit by the Indemnifying Party but excluding fees and expenses of counsel for the Indemnified Party incurred after the assumption of the conduct and control of such action or suit by the Indemnifying Party for which the Indemnifying Party is required to indemnify the Indemnified Party in accordance with the provisions of Section 10.1 or 10.2, as applicable. So long as the Responsible Indemnifying Party is reasonably contesting any such claim action or suit in good faith, the Indemnified Party shall not pay pay, settle or settle compromise any such claimaction or suit. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay pay, settle or settle compromise any such claimaction or suit, provided that in such event it the Indemnified Party shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Indemnifying Party, but and no amount in respect thereof shall not thereby waive any right to indemnity therefor pursuant to be claimed as Losses or Expenses under this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentSection 10.

Appears in 1 contract

Samples: Purchase Agreement (Dobson Communications Corp)

Third Party Claims. (a) If In the event the matter for which an Indemnified Party provides a claim, action, suit notice pursuant to Section 9.4 involves the assertion of any claim or the commencement of any action or proceeding by any entity who is not a third party Party to this Agreement or an Affiliate of a Party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such the Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 no later than 30 calendar days after receipt of the notice of such notice Third Party Claim, to assume the elect to assume, conduct and control, through counsel reasonably acceptable to control the Indemnified defense of any Third Party Claim at the Indemnifying Party’s expense and by counsel of the Responsible Party, of the settlement or defense thereofits choosing, and the Indemnified Party shall will cooperate with it in good faith in such defense, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith; provided, that the Responsible Party shall permit the . The Indemnified Party will have the right to participate in such settlement or the defense through of any Third Party Claim assisted by counsel chosen by such Indemnified of its choosing and at its expense, subject to the Indemnifying Party, provided, that ’s right to control the fees and expenses defense of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, claim; provided that the Indemnified Party shall not, without the written consent of the Indemnifying Party (which consent shall not pay be unreasonably withheld or delayed), pay, compromise or settle any such claim, action or suit. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay pay, settle or settle compromise any such claim, action or suit without such consent, provided that that, in such event it event, the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld or delayed by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldIndemnifying Party. If the Responsible Indemnified Party does has not notify received written notice within such 30 calendar day period that the Indemnifying Party has elected to assume the defense of such Third Party Claim, the Indemnified Party within 15 days after may, at its option, elect to settle or assume such defense, assisted by counsel of its choosing, and the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder Indemnifying Party will be liable for all Losses paid or incurred in connection therewith, provided, however, that it elects to undertake the defense thereof; the Indemnified Party shall have was entitled to be indemnified against such Third Party Claim by the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor Indemnifying Party pursuant to the terms of this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentArticle IX.

Appears in 1 contract

Samples: Asset Purchase Agreement (Houston Wire & Cable CO)

Third Party Claims. In the event that any Acquirer Indemnified Party or Company Securityholder Indemnified Party (a) If a claimeach, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if ) becomes aware of a third-party claim (including any action or proceeding commenced or threatened to be commenced by any third-party) that such Indemnified Party intends reasonably believes may result in an indemnification by the Company Securityholders pursuant to seek indemnity with respect thereto under this Article VIIISection 8.1 if the Indemnified Party is an Acquirer Indemnified Party or by Acquirer pursuant Section 8.2 if the Indemnified Party is a Company Indemnified Party (any such claim, a “Third-Party Claim” and the Persons providing indemnification in such case the “Indemnifying Party”), the Indemnified Party shall promptly notify the party obligated to indemnify Indemnifying Party in writing of such Indemnified Third-Party Claim (such notified partynotice, the “Responsible Claim Notice”). The Claim Notice shall be accompanied by copies of any relevant and material documentation submitted by the third party making such Third-Party Claim and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such Third-Party Claim and the amount of such claimsthe claimed Damages; provided, however, that no delay or failure on the failure to so notify part of the Indemnified Party in delivering a Claim Notice shall not relieve the Responsible Indemnifying Party of its obligations hereunder, from any liability hereunder except and only to the extent that the Responsible Party is they shall have been actually and materially prejudiced therebyas a result of such delay or failure. The Responsible Party shall have 15 Within 20 days after receipt of any Claim Notice, the Indemnifying Party may, upon written notice thereof to Indemnified Party (which written notice shall include an acknowledgement by the Indemnifying Party that the Indemnified Party shall be responsible for all Damages relating to such notice Third-Party Claim (subject to the limitations contained in this Article VIII)), assume control of the conduct defense of the Third-Party Claim referred to therein at the Indemnifying Party’s sole cost and control, through expense) with counsel reasonably acceptable satisfactory to the Indemnified Party. Notwithstanding anything to the contrary contained herein, the Indemnifying Party at shall not be entitled to assume or control the expense investigation, defense or prosecution of such Third-Party Claim if (A) such Third-Party Claim seeks non-monetary, equitable or injunctive relief or alleges any violation of criminal Law, (B) the Indemnifying Party (including the Company Securityholders in the case of the Responsible Party, of the settlement or defense thereof, Stockholders’ Agent) also is a party to such Third-Party Claim and the Indemnified Party shall cooperate determines in good faith after consultation with it counsel that joint representation would be inappropriate, (C) such Third-Party Claim relates to or arises in connection therewithwith any criminal or regulatory proceeding, action, indictment, allegation or investigation (including, for the avoidance of doubt, any audit or other proceeding relating to Taxes or Tax Returns), (D) a vendor, supplier, licensor, licensee or service provider of Acquirer, the Company or any of their respective Affiliates is a party to such Third-Party Claim, or (E) with respect to any Third-Party Claim against an Acquirer Indemnified Party, the Damages set forth in the Third-Party Claim is more than or equal to the amount then actually available Indemnity Escrow Funds. The party not controlling the defense of such Third-Party Claim (the “Non-Controlling Party”) may participate therein at its own expense. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed; provided, however, that the Responsible Party shall permit consent of the Indemnified Party shall not be required with respect to participate in any such settlement or defense through counsel chosen judgment if (A) such settlement or judgment (1) involves no admission of wrongdoing by the Indemnified Party or its Affiliates, (2) the sole relief provided is monetary damages and (B) the Indemnified Party agrees in writing to pay or cause to be paid any amounts payable pursuant to such settlement or judgment (net of the applicable deductible amount specified in Section 8.6(b)) and such settlement or judgment includes a complete release of the Indemnified PartyParty and its Affiliates, provideddirectors, that stockholders, members, managers, partners, officers, employees, and representatives from further liability and has no other adverse effect on the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as If the Responsible Indemnifying Party does not elect to defend any Third-Party Claims or is reasonably contesting precluded from doing so by any of the exception to the Indemnifying Party’s right to defend such claim in good faithThird-Party Claim set forth above and the Indemnified Party accordingly defends itself against such Third-Party Claim, the Indemnified Party shall not pay agree to any settlement of, or settle the entry of any judgment arising from, any such claim. Notwithstanding Third-Party Claim without the foregoingprior written consent of the Indemnifying Party, which shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnifying Party shall not be required with respect to any such settlement or judgment if the Indemnified Party shall have the right agrees in writing to pay or settle cause to be paid any amounts payable pursuant to such claimsettlement or judgment. For purposes of this Section 8.3, provided that in such event it shall waive any right to indemnity therefor by if the Responsible Company Stockholders, collectively, comprise the Indemnified Party or from the Escrow AccountIndemnifying Parties, then in each such case all references to such Indemnified Party or Indemnifying Parties, as the case may be, (except for such claim unless the Responsible Party shall have consented provisions relating to such payment an obligation to make or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestreceive any payments) shall be deemed to refer to the Stockholders’ Agent acting on behalf of such Indemnified Person or Indemnifying Person, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentapplicable.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Castle Biosciences Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) claim is made against any person a Company Indemnified Party or entity entitled to indemnification pursuant to Section 8.2 hereof a Purchaser Indemnified Party (an “Indemnified Party”the "INDEMNIFIED PARTY"), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIISection VI or Section II(E), such Indemnified Party shall must promptly notify Purchaser or the party obligated to indemnify such Indemnified Party Company, as the case may be (such notified party, the “Responsible Party”an "INDEMNIFYING PARTY") of such claims; providedclaim, that the but any failure to so notify give such notice shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except from any liability it may have to the extent that the Responsible such Indemnified Party is actually and materially prejudiced therebyunder this Agreement. The Responsible Indemnifying Party shall have 15 30 days after receipt of such notice to assume the undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, PROVIDED that the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claimclaim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldclaim. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 30 days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all such Indemnified Parties Party of an unconditional release from all liability liabilities with respect to such claim or consent to entry of any judgmentclaim.

Appears in 1 contract

Samples: Stock Purchase Agreement (Grubb & Ellis Co)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person party or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), parties hereto and if such Indemnified Party the party or parties against whom said claim is made intends to seek indemnity indemnification with respect thereto under this Article VIIISubsections 5.1 or 5.2, the party or parties seeking such Indemnified Party indemnification shall promptly notify the party obligated to indemnify such Indemnified Party (such notified partyall indemnifying parties, the “Responsible Party”) in writing, of such claimsclaim; provided, however, that the failure to so notify give such notice shall not relieve affect the Responsible Party rights of its obligations hereunder, the indemnified party or parties hereunder except to the extent that such failure materially and adversely affects the Responsible Party is actually and materially prejudiced therebyindemnifying party or parties ability to timely defend such action. The Responsible Party indemnifying party or parties shall have 15 10 business days after receipt of such said notice is given to assume elect, by written notice given to the indemnified party or parties, to undertake, conduct and control, through counsel reasonably acceptable of their own choosing (subject to the Indemnified Party at the expense consent of the Responsible Partyindemnified party or parties, of such consent not to be unreasonably withheld) and at their sole risk and expense, the good faith settlement or defense thereofof such claim, and the Indemnified Party indemnified party or parties shall cooperate with it the indemnifying parties in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the indemnified party and the prior written consent of the indemnified party, that which consent shall not be unreasonably withheld, and (b) the Responsible Party indemnified party or parties shall permit the Indemnified Party be entitled to participate in such settlement or defense through counsel chosen by such Indemnified Partythe indemnified party or parties, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Partythe indemnified party or parties. So long as the Responsible Party is reasonably indemnifying party or parties are contesting any such claim in good faith, the Indemnified Party indemnified party or parties shall not pay or settle any such claim. Notwithstanding ; provided, however, that notwithstanding the foregoing, the Indemnified Party indemnified party or parties shall have the right to pay or settle any such claimclaim at any time, provided that in such event it they shall waive any right to indemnity of indemnification therefor by the Responsible Party indemnifying party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldparties. If the Responsible Party does indemnifying party or parties do not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of make a claim of indemnity hereunder that it elects timely election to undertake the good faith defense thereof; or settlement of the Indemnified Party claim as aforesaid, or if the indemnifying parties fail to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the indemnified party or parties shall have the right to contest, settle or compromise (provided that all settlements or compromises require the claimprior reasonable consultation with the indemnifying party and the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld) the claim at their exclusive discretion, at the risk and expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentindemnifying parties.

Appears in 1 contract

Samples: Stock Purchase Agreement (Take Two Interactive Software Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding Promptly after the assertion by a any third party of any claim against any Indemnified Party (a “Third Party Claim”) is made against any person or entity that, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIAgreement, such Indemnified Party shall promptly notify deliver to the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claimsSeller Parties a Claim Certificate; provided, that no delay on the failure to so notify part of the Indemnified Party in notifying the Seller Parties shall not relieve the Responsible Party Seller Parties of its any liability or obligations hereunder, except to the extent that the Responsible Party is actually and Seller Parties have been materially prejudiced thereby, and then only to such extent. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right in its sole discretion to pay or settle conduct the defense of any such claimThird Party Claim; provided, provided that in the Seller Parties shall not be liable to indemnify any Indemnified Party for any settlement of any such event it shall waive any right to indemnity therefor by Third Party Claim effected without the Responsible Party or from prior written consent of the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementSeller Parties, which consent will shall not be unreasonably withheld, conditioned or delayed. If In the Responsible event an Indemnified Party does not notify has requested the consent of the Seller Parties to a settlement of a Third Party Claim and the Indemnified Party has not received a written consent or written objection, in each case executed in a single document by both Seller Parties, within 15 days after three (3) Business Day (or such shorter time which would not unreasonably delay or prejudice the receipt of Third Party Claim) then the Indemnified Party’s notice , in its sole discretion shall be entitled to proceed with the settlement of such Third Party Claim and shall be entitled to indemnification for the amounts of any Loss relating thereto. If any such action or claim is settled with the prior written consent of the Seller Parties, or if there be a claim of indemnity hereunder that it elects to undertake final judgment for the defense thereof; plaintiff in any such action, the Indemnified Party shall have be entitled to indemnification for the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry amount of any judgmentLoss relating thereto.

Appears in 1 contract

Samples: Stock Purchase Agreement (Descartes Systems Group Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party is made against any Indemnified Party with respect to which the Indemnified Party intends to seek indemnification hereunder for any Loss under this Article 8 (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such the Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claimsThird Party Claim; provided, however, that the failure by the Indemnified Party to so notify the Indemnifying Party(ies) shall not relieve the Responsible Party Indemnifying Party(ies) of its their obligations hereunder, except to the extent that the Responsible Party is actually and Indemnified Party(ies) are materially prejudiced therebyby such failure. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to notify the Indemnified Party if the Indemnifying Party has elected to assume the defense of such Third Party Claim. If the Indemnifying Party elects to assume the defense of such Third Party Claim, the Indemnifying Party shall be entitled at its own expense to conduct and control the defense of, but not the settlement of, such Third Party Claim through counsel of its own choosing on behalf of the Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within thirty (30) days after receipt of notice of a Third Party Claim that the Indemnifying Party has elected to assume the defense of such Third Party Claim or if the Indemnifying Party elects not to assume the defense of such Third Party Claim, then, notwithstanding any provision of this §8.7 to the contrary, the Indemnified Party shall be entitled to assume the defense of such Third Party Claim at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Indemnifying Party. So long as Notwithstanding any provision of this Agreement to the Responsible Party is reasonably contesting any such claim in good faithcontrary, the Indemnified Indemnifying Party shall not pay or settle be entitled to assume the defense of any such claim. Notwithstanding the foregoing, the Indemnified Third Party shall have the right Claim (unless otherwise agreed to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor writing by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a ) if (i) the claim of indemnity hereunder that it elects for indemnification relates to undertake or arises in connection with any criminal, fraud or other governmental Authority proceeding, action, allegation, investigation or indictment, (ii) the defense thereof; the Indemnified Third Party shall have the right to contest, settle Claim seeks an injunction or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of equitable relief against the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof or (iii) the giving by the person Indemnifying Party has failed or persons asserting is failing to vigorously prosecute or defend such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentclaim.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Carlisle Companies Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such A Parent Indemnified Party shall promptly notify give the party obligated Unitholder Representative written notice (which may be part of an Indemnification Notice) of any claim, assertion or action by or in respect of a third party, including any civil, criminal, administrative, regulatory, investigative or arbitral proceeding, as to indemnify which such Parent Indemnified Party (may request indemnification hereunder or as to which the Deductible may be applied as soon as is practicable and in any event within fifteen calendar days of the time that such notified party, the “Responsible Party”) Parent Indemnified Party learns of such claimsclaim, assertion, action or proceeding; provided, however, that the failure to so notify the Unitholder Representative shall not relieve affect the Responsible rights of the Parent Indemnified Party of its obligations hereunder, to indemnification hereunder except to the extent that the Responsible Unitholder Representative (as such) is prejudiced by such failure. Parent (on its own behalf or on behalf of any other Parent Indemnified Party is actually and materially prejudiced thereby. The Responsible Party if such claim, assertion, action or proceeding involves another 60 Parent Indemnified Party) shall have 15 days after receipt of such notice to assume the conduct and controldirect, through counsel of its own choosing reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithUnitholder Representative, the Indemnified Party shall not pay response to, defense of or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle settlement of any such claim, provided that assertion, action or proceeding, but the cost thereof shall be an indemnifiable Loss in accordance with Section 8.2. Parent shall consult with the Unitholder Representative for the purpose of allowing the Unitholder Representative to participate in responding to, defending or settlement of claim, assertion, action or proceeding, but in such event it case the expenses of the Unitholder Representative, including the fees and disbursements of its counsel, shall waive be paid by the Unitholder Representative. Parent shall provide and shall cause the Surviving Company to provide (during normal business hours) the Unitholder Representative and its counsel with reasonable access to the records and personnel of the Surviving Company and Parent relating to any right claim, assertion, action or proceeding subject to indemnity therefor hereunder during normal business hours. If the Unitholder Representative shall determine to be represented by counsel in any such proceeding, Parent shall cooperate, and cause the Responsible Party counsel representing it in such proceeding to cooperate, with counsel representing the Unitholder Representative in such proceeding. Parent shall not pay, or from the Escrow Accountpermit to be paid, as the case may be, for such any part of any third party claim or demand in respect of which indemnification has been sought hereunder unless the Responsible Party shall have consented Unitholder Representative consents in writing to such payment or settlement, (which consent will shall not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of the Unitholder Representative is entered against the Parent Indemnified Party for such liability or unless, upon request of Parent, the Unitholder Representative has failed to show to Parent’s reasonable satisfaction that, taking into account the then amount of the Deferred Payment and any Earn-out Consideration anticipated to be payable by Parent, there are not readily available to the Unitholder Representative sufficient funds to pay the amount in respect of such claim, demand or proceeding for which an Indemnification Notice has been given. If the Responsible Party does not notify Unitholder Representative deposits with Parent an irrevocable letter of credit, or similar form of financial assurance, in the Indemnified Party within 15 days after amount for which the receipt of Indemnification Notice has been given by Parent in connection with such third-party proceeding, the Indemnified Party’s notice of a claim of indemnity hereunder Unitholder Representative shall be considered to have shown that it elects there are readily available sufficient funds to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting pay such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentamount.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Magellan Health Services Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by a any third party shall notify any Person entitled to indemnification hereunder (the “Indemnified Party “) with respect to any matter (a “Third Party Claim”) is made which may give rise to a claim for indemnification against any person or entity entitled to indemnification pursuant to Section 8.2 hereof other Party (an the Indemnified Indemnifying Party”), and if such Indemnified Party intends to seek indemnity with respect thereto ) under this Article VIIIXII, such then the Indemnified Party shall promptly (and in any event within ten business days after receiving notice of the Third Party Claim) notify the party obligated to indemnify each Indemnifying Party thereof in writing; provided that such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve limit the Responsible indemnification obligations of the Indemnifying Party of its unless such delay negatively impacts the Indemnifying Party’s ability to defend against a Third Party Claim, and then such indemnification obligations hereunder, except shall be limited only to the extent that of such negative impact to the Responsible ability to defend. Any Indemnifying Party is actually and materially prejudiced thereby. The Responsible Party shall will have 15 the right, exercisable within ten days after of receipt of such notice of a Third Party Claim, to assume and thereafter conduct the conduct defense of the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party; provided that (i) the Indemnifying Party provides written notice to the Indemnified Party that the Indemnifying Party intends to undertake such defense, and controlby such notice it shall be conclusively established that the Indemnifying Party shall indemnify the Indemnified Party against all claims for indemnification resulting from or relating to such Third Party Claim as provided in this Article XII, through counsel (ii) the Indemnifying Party provides to the Indemnified Party evidence reasonably acceptable to the Indemnified Party at that the expense Indemnifying Party shall have the financial resources to defend against the Third Party Claim and to fulfill its indemnification obligations hereunder, (iii) the Indemnifying Party conducts the defense of the Responsible PartyThird Party Claim actively and diligently with counsel reasonably satisfactory to the Indemnified Party and (iv) if the Indemnifying Party is a party to the proceeding, the Indemnifying Party has not determined in good faith that joint representation would be inappropriate; provided, however, that the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld or delayed unreasonably) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party. The Indemnified Party shall, in its sole discretion, have the right to employ separate counsel (who may be selected by the Indemnified Party in its sole discretion) in any such action and to participate in the defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne paid by such Indemnified Party. So long Unless and until an Indemnifying Party assumes the defense of the Third Party Claim as the Responsible Party is reasonably contesting any such claim in good faithprovided above, however, the Indemnified Party shall not pay may defend against the Third Party Claim in any manner he or settle any such claimit reasonably may deem appropriate. Notwithstanding the foregoing, In no event will the Indemnified Party shall have consent to the right to pay entry of any judgment or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim the Third Party Claim without the prior written consent of each of the Indemnifying Parties (not to be withheld or consent to entry of any judgmentdelayed unreasonably).

Appears in 1 contract

Samples: Purchase and Sale Agreement (Standex International Corp/De/)

Third Party Claims. (ai) If a claim, action, suit In the event that any written claim or proceeding demand for which an Indemnifying Party may have liability to an Indemnified Party hereunder is asserted against or sought to be collected from an Indemnified Party by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such the Indemnified Party shall promptly notify give written notification to the Indemnifying Party of the Third Party Claim. Such notification will be accompanied by reasonable supporting documentation submitted by such third party obligated (to indemnify the extent then in the possession of the Indemnified Party) and will describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of any Liability or obligation hereunder except (and to the extent) the Indemnifying Party is materially prejudiced thereby. Within twenty (20) days after delivery of such notified partynotification, the “Responsible Indemnifying Party may, at its own expense, upon written notice thereof to the Indemnified Party”) , assume control of the defense of such claimssuit or proceeding with counsel reasonably satisfactory to the Indemnified Party; provided, that (A) the failure to so notify shall not relieve Indemnifying Party acknowledges its assumption of the Responsible Party of its obligations hereunder, except defense in writing to the extent Indemnified Party and acknowledges (i) that any Damages that are assessed against the Responsible Indemnified Party shall be indemnified pursuant to this Article 6 and (ii) any Damages for which the Indemnified Party may be entitled to indemnification hereunder are less than or equal to the amount of Damages for which the Indemnifying Party is actually and materially prejudiced thereby. The Responsible liable under this Article 6, (B) the Indemnifying Party shall have 15 days after receipt of such notice to assume provides the conduct and control, through counsel Indemnified Party with evidence reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Indemnifying Party shall permit will have the Indemnified financial resources to defend against the Third Party to participate in such settlement Claim and fulfill its indemnification obligations hereunder and (C) the Third Party Claim involves only money damages and does not seek an injunction, other equitable remedy or defense through counsel chosen by such Indemnified Party, provided, that involve criminal liability. If the fees and expenses Indemnifying Party does not so assume control of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithdefense, the Indemnified Party shall not pay or settle any will control such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentdefense.

Appears in 1 contract

Samples: Asset Purchase Agreement (Eclipsys Corp)

Third Party Claims. (a) If a claim, action, suit or proceeding by In the event Parent becomes aware of a third party claim (a “Third Party Claim”) is made against any person or entity entitled to which Parent reasonably believes may result in a demand for indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)this ARTICLE VII, and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party Parent shall promptly notify the party obligated to indemnify Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnified Party (such notified party, the “Responsible Indemnifying Party) of such claims; providedclaim, that and the Stockholder Representative shall be entitled on behalf of the Indemnifying Parties (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party shall be entitled), at their expense, to participate in, but not to determine or conduct, the defense of such Third Party Claim. The failure to so notify the Stockholder Representative promptly shall not relieve the Responsible Party Indemnifying Parties of its obligations hereunderany liability, except to the extent and only to the extent the Stockholder Representative demonstrates that the Responsible Party defense of such action is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt If there is a third party claim that, if adversely determined, would give rise to a right of recovery for Losses hereunder, then any amounts incurred by the Indemnified Parties in defense of such notice to assume the conduct and controlthird-party claim, through counsel reasonably acceptable to the Indemnified Party at the expense regardless of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses outcome of such counsel claim, shall be borne by such Indemnified Partydeemed Losses hereunder. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party Parent shall have the right in its sole discretion to pay or settle conduct the defense of, and to settle, any such claim; provided, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Accounthowever, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall notthat, except with the consent of the Indemnified Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, enter into such Indemnifying Party), no settlement of any settlement that does not include as an unconditional term thereof such Third Party Claim with third party claimants shall be determinative of the giving by amount of Losses relating to such matter; provided further, however, the person or persons asserting such claim to all Indemnified Parties consent of an unconditional release from all liability the Stockholder Representative with respect to such claim or consent to entry any settlement of any judgmentsuch Third Party Claim shall be deemed to have been given unless the Stockholder Representative shall have objected within twenty (20) days after a written request for such consent by Parent. In the event that the Stockholder Representative has consented to any such settlement, the Indemnifying Parties shall have no power or authority to object under any provision of this ARTICLE VII to the amount of any Third Party Claim by Parent.

Appears in 1 contract

Samples: Agreement and Plan of Merger (API Technologies Corp.)

Third Party Claims. (a) If a claim, action, suit or proceeding by In the event Parent becomes aware of a third party claim (a “Third Party Claim”) is made against any person or entity entitled to indemnification which Parent in good faith believes will result in an Indemnification Claim pursuant to Section 8.2 hereof (an “Indemnified Party”)this Article VII, Parent shall notify the Securityholder Representative of such Third Party Claim, and if such Indemnified Party intends the Securityholder Representative shall be entitled on behalf of the Indemnifying Parties, at their expense, to seek indemnity with respect thereto under this Article VIIIparticipate in, such Indemnified Party shall promptly notify the party obligated but not to indemnify such Indemnified Party (such notified partydetermine or conduct, the “Responsible Party”) defense of such claims; provided, that the Third Party Claim. The failure to so notify the Securityholder Representative shall not relieve the Responsible Party Indemnifying Parties of its obligations hereunderany liability unless, except and only to the extent extent, the Securityholder Representative demonstrates that the Responsible Party defense of such action is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party Parent shall have the right in its sole discretion to pay or settle conduct the defense of, and to settle, any such claimThird Party Claim; provided, provided however, that in such event it Parent shall waive seek the prior written consent of the Securityholder Representative with respect to any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will shall not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle conditioned or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreementdelayed. The Responsible Party shall not, except with the written consent of the Indemnified Party, enter into Securityholder Representative with respect to any settlement that does not include as an unconditional term thereof of any Third Party Claim shall be deemed to have been given unless the giving Securityholder Representative shall have objected within ten (10) Business Days after a written request for such consent by Parent. Any such written consent by the person Securityholder Representative shall represent the agreement of Securityholder Representative that the Losses incurred in connection therewith shall be indemnifiable hereunder and, for the avoidance of doubt, represents Loss Amounts. In the event that the Securityholder Representative has consented to any such settlement (or persons asserting such claim in the event that written consent to all Indemnified settlement has been unreasonably withheld, conditioned or delayed), neither the Securityholder Representative nor the Indemnifying Parties shall have any power or authority to object under any provision of an unconditional release from all liability this Article VII to the amount of any Indemnification Claim by Parent against the Indemnifying Parties with respect to such claim settlement. If such written consent is not given (unless such consent was unreasonably withheld, conditioned or consent delayed, in which case the preceding sentence shall apply), Parent may agree to entry any such settlement or compromise, and may deliver a Claim Notice therefor, and the resolution of the Indemnification Claim set forth therein (including whether and to what extent Parent or any judgmentother Indemnified Party is entitled to indemnification under this Agreement for such Indemnification Claim) shall remain subject to this Article VII.

Appears in 1 contract

Samples: Agreement and Plan of Merger and Reorganization (23andMe Holding Co.)

Third Party Claims. (a) If a claim, action, suit or proceeding by In the event any Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) is made against any person or entity entitled to that such Indemnified Party reasonably believes may result in a claim for indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIX, such Indemnified Party shall promptly notify the Indemnifying Party of such claim with an Indemnification Claim Notice (a “Third Party Notice”), and the Third Party Notice shall be accompanied by copies of any documentation submitted by the third party obligated to indemnify making such Third Party Claim (except that the Indemnified Party (may withhold from the Indemnified Party such notified party, communications with its legal counsel to the “Responsible Party”) extent that legal counsel to the Indemnified Party advises that providing such communication could result in the loss of any attorney-client privilege or right under the work-product doctrine of the Indemnified Party in respect of such claimsclaim, after giving due consideration to any “community of interest” or similar privilege, if any); provided, that no delay or failure on the failure part of the Indemnified Party in delivering a Third Party Notice shall cause any Indemnified Party to so notify shall not relieve the Responsible Party of its obligations hereunder, forfeit any indemnification rights under this Article X except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced therebyby such delay or failure. The Responsible Upon receipt of a Third Party Notice, the Indemnifying Party shall have 15 days after receipt of such notice be entitled to assume the participate in, and undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing, and at the expense of the Responsible Partyits expense, of the settlement or defense thereof, and the Indemnified Party shall reasonably cooperate with it the Indemnifying Party in connection therewith; provided, that that: (i) the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such the Indemnified Party, provided, Party (provided that the fees and expenses of such counsel shall not be borne by the Indemnifying Party); (ii) the Indemnifying Party shall not pay, compromise or settle any Third Party Claim without the Indemnified Party’s prior written consent (in the Indemnified Party’s sole discretion) unless the proposed payment, compromise or settlement (A) involves solely the payment of money damages by the Indemnifying Party, (B) includes, as an unconditional term of such payment, compromise or settlement, an unconditional and irrevocable release by the Person(s) asserting such claim of the Indemnified Party from any liabilities or obligations with respect to such claim, (C) does not impose any restriction on the Indemnified Party or any injunctive or other equitable relief against the Indemnified Party, and (D) does not include or require a finding or admission of any wrongdoing; and (iii) if the Indemnified Party reasonably determines, based on the advice of counsel to the Indemnified Party, that the Indemnified Party has separate defenses from the Indemnifying Party or that there is a conflict of interest between any Indemnified Party and any Indemnifying Party, then the Indemnified Party shall be permitted to retain special counsel of its own choosing at the reasonable expense of the Indemnifying Party. So long as the Responsible Indemnifying Party is reasonably contesting any such claim has taken responsibility for and continues to defend the Third Party Claim in good faith, the Indemnified Party shall not pay pay, compromise or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless without the Responsible Party shall have consented to such payment or settlementIndemnifying Party’s written consent, which consent will shall not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle withheld or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentdelayed.

Appears in 1 contract

Samples: Securities Purchase Agreement (Tempo Automation Holdings, Inc.)

Third Party Claims. (a) If a any claim, action, suit assertion or proceeding by or in respect of a third party (a “Third Party Claim”) is made against an Indemnified Party or any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)event in respect of a third party occurs, and if such the Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIor to apply any damage or liability arising therefrom to the U.S. Dollar amounts referred to herein, such the Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; providedclaim in writing, provided that the failure by the Indemnified Party to so notify give such notice shall not relieve the Responsible Indemnifying Party of from its indemnification obligations hereunder, except if and to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct undertake, conduct, and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, however, that (a) the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such the Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party, (b) the Indemnifying Party shall promptly reimburse the Indemnified Party for the full amount of any liability resulting from such claim and all related and reasonable expenses (other than the fees and expenses of counsel as aforesaid) incurred by the Indemnified Party within the limits of this Article and subject to the U.S. Dollar amounts referred to herein, (c) the Indemnified Party shall not, without the prior written consent of the Indemnifying Party, settle or compromise any claim or consent to the entry of any judgment that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim, and (d) nothing herein shall require any Indemnified Party to consent to the entry of any order, injunction, or consent decree materially affecting its ability to conduct its business operations after the date thereof. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim; provided, provided however, that in such event it shall waive any right to indemnity therefor by the Responsible Party Indemnifying Party. If representation of the Indemnified Party, on the one hand, and the Indemnifying Party, on the other, by the same counsel would otherwise be inappropriate due to actual or from potential differing interests between them, then the Escrow Account, as Indemnified Parties shall be entitled to engage separate legal counsel to participate in the case may be, for defense of such claim unless at the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldsole expense of Indemnifying Party. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s written notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle settle, or compromise the claim, claim in the exercise of its reasonable judgment at the expense of the Responsible Indemnifying Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.AGREEMENT FOR PURCHASE OF LLC INTEREST ACTIVE 64517303v2

Appears in 1 contract

Samples: Agreement for Purchase of LLC Interest (JUVA LIFE INC./Canada)

Third Party Claims. (a) If a claim, action, suit any actual or proceeding threatened claim or demand by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)Buyer Indemnitee, and if such Indemnified Party Buyer Indemnitee intends to seek indemnity with respect thereto under this Article VIIIX, such Indemnified Party shall promptly Buyer Indemnitee shall, as soon as practicable, notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) Sellers’ Representative of such claimsThird Party Claim; provided, provided that the failure to so notify the Sellers’ Representative shall not relieve the Responsible Party Seller Members of its their obligations hereunder, except to the extent that the Responsible Party is Seller Members are actually and materially prejudiced thereby. The Responsible notice of a Third Party Claim shall include, based on the information then available to Buyer, a summary in reasonable detail of the basis for the Third Party Claim. The Sellers’ Representative, on behalf of the Seller Members shall, at its sole expense, be entitled to participate in any defense of such Third Party Claim; provided, however, that Buyer shall have 15 days after receipt full control over the litigation, including settlement and compromise thereof, unless the primary remedy of such notice to assume the conduct and control, through counsel reasonably acceptable settlement or compromise is injunction or other non-monetary relief which is applicable to the Indemnified Seller Members, in which case the Sellers’ Representative’s written consent shall be required, which consent shall not be unreasonably withheld, conditioned or delayed. Buyer shall have the right in its sole and absolute discretion whether to settle any Third Party at the expense of the Responsible Party, of the settlement or defense thereofClaim, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in amount of any settlement payment or extent of any other Liabilities incurred by way of such settlement or defense through counsel chosen by such Indemnified Partysettlement, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified PartySellers’ Representative (which shall not be unreasonably withheld, enter into conditioned or delayed), no settlement of any settlement that does not include as an unconditional term thereof such Third Party Claim shall be determinative of the giving by the person or persons asserting such claim to all Indemnified Parties amount of an unconditional release from all liability with respect Losses relating to such claim matter or consent that a Buyer Indemnitee is entitled to entry indemnification pursuant to this Article X. In settling any Third Party Claim, Buyer shall not be deemed to be an agent of, and shall have no duty, including, without limitation, any fiduciary duty, duty of any judgmentloyalty, duty of good faith or duty of disclosure, to the Seller Members.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (PLAYSTUDIOS, Inc.)

Third Party Claims. Promptly after the receipt by the Indemnified Party of notice of the commencement of any Legal Action (aother than a Contest or Specified Tax Matter) If a claim, action, suit or proceeding by involving a third party (such Legal Action, a “Third Third-Party Claim”) such Indemnified Party shall, if a claim with respect thereto is to be made against any person or entity entitled to indemnification Indemnifying Party pursuant to Section 8.2 hereof (an “11.1, give such Indemnifying Party written notice of such Third-Party Claim in reasonable detail in light of the circumstances then known to such Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure of the Indemnified Party to so notify provide such notice shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that such failure to give notice shall materially prejudice any defense or claim available to the Responsible Party is actually and materially prejudiced therebyIndemnifying Party. The Responsible Indemnifying Party shall have 15 days after receipt of such notice be entitled to assume the conduct and control, through defense of any Third-Party Claim with counsel reasonably acceptable satisfactory to the Indemnified Party, at the Indemnifying Party’s sole expense, if the Indemnifying Party gives notice to the Indemnified Party at that it will indemnify the expense Indemnified Party from and against any Damages arising therefrom (subject to the limitations herein) without any reservation of right. If the Indemnifying Party assumes the defense of any Third-Party Claim: (i) it shall within thirty (30) days (or sooner, if the nature of the Responsible PartyThird Party Claim so requires) of receipt of the foregoing notice (the “Dispute Period”) notify the Indemnified Party of its intent to do so, (ii) it shall not settle or compromise such Third-Party Claim without the prior written consent of the Indemnified Party unless (A) the settlement or defense thereofcompromise does not entail any admission of liability on the part of any Indemnified Party, (B) the settlement or compromise includes an unconditional release of each Buyer Indemnitee or Seller Indemnitee, as applicable, reasonably satisfactory to the Indemnified Party, from all Damages with respect to such Third-Party Claim, and (C) the settlement or compromise is solely for monetary damages that will be promptly paid in full by the Indemnifying Party and (iii) the Indemnified Party shall cooperate with it have the right (but not the obligation) to participate in connection therewiththe defense of such Third-Party Claim and to employ, at its own expense, counsel separate from counsel employed by the Indemnifying Party; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Partyreasonable fees, provided, that the fees costs and expenses of such counsel shall be borne at the expense of the Indemnifying Party if both are named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. If the Indemnifying Party does not undertake within the Dispute Period to defend against any Third-Party Claim, then the Indemnified Party will be entitled to assume such defense, at the sole cost and expense of the Indemnifying Party (which cost is a Damage subject to the limitations in this Article XI). The Indemnified Party. So long as Party shall not settle any Third-Party Claim, unless such settlement is consented to in writing by the Responsible Indemnifying Party is reasonably contesting (which such consent shall not be unreasonably withheld, conditioned or delayed), and if any such claim in good faithThird Party Claim is settled without the consent of the Indemnifying Party (where such consent has not been unreasonably withheld, conditioned or delayed), the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall be deemed to have the right to pay or settle any such claim, provided that in such event it shall waive waived any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim hereunder unless the Responsible Indemnifying Party subsequently consents in writing. Each Party shall have consented reasonably cooperate, and cause their respective Affiliates to such payment reasonably cooperate, in the defense or settlementprosecution of any Third-Party Claim. Notwithstanding anything to the contrary in the foregoing, which consent will the Indemnifying Party shall not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects entitled to undertake assume the defense thereof; of any Third-Party Claim (and the Indemnified Party shall have control such defense) if and to the right to contest, settle or compromise extent (i) the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except claim is by a Person that has a material business relationship with the consent of Acquired Companies (but not with the Seller), (ii) the claim seeks injunctive relief against the Indemnified Party, enter into any settlement (iii) the claim is criminal in nature, (iv) if the Indemnified Party has been advised by counsel that does (A) there are one or more legal or equitable defenses available to it with a reasonable prospect of success which are not include as an unconditional term thereof available to the giving by Indemnifying Party or (B) there exists a reasonable likelihood of a conflict of interest between the person Indemnified Party and the Indemnifying Party; (v) the Indemnifying Party elected to conduct such Third-Party Claim and then failed to conduct or persons asserting such claim to all Indemnified Parties of an unconditional release withdrew from all liability the Third-Party Claim or (vi) if the Damages with respect to such claim or would be subject to the Cap, the claim has a reasonable likelihood of resulting in Damages that would exceed the balance remaining under the Cap. Any consent to entry be given by a Buyer Indemnitee under this Section 11.4 shall be given by the Buyer acting on behalf of such Buyer Indemnitee and any judgmentconsent to be given by a Seller Indemnitee under this Section 11.4 shall be given by the Seller acting on behalf of such Seller Indemnitee.

Appears in 1 contract

Samples: Stock Purchase Agreement (Fifth & Pacific Companies, Inc.)

Third Party Claims. Promptly after the receipt by either party that it is entitled to indemnification (athe "Indemnified party") If pursuant to this Article 6 of a claim, action, suit notice of the assertion of a claim or proceeding the commencement of any Action against it by a third party (a "Third Party Claim"), the other party (the "Indemnifier party") shall, if a claim with respect thereto is to be made against any person or entity entitled the and the is obligated to provide indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII6, such give the Indemnified Party shall promptly notify party a written notice thereof in reasonable detail in light of the party obligated circumstances then known to indemnify such Indemnified Party (such notified the Indemnifier party, the “Responsible Party”) of such claims; provided, that the . The failure to so notify give such notice shall not relieve the Responsible Party of its obligations hereunderIndemnifier party from any obligation hereunder except where, except and then solely to the extent that the Responsible Party is that, such failure actually and materially prejudiced therebyprejudices the rights of the Indemnifier party. The Responsible Party Indemnifier party shall have 15 days after receipt the right, at its sole discretion, to defend such a claim, on it own expense and with counsel of its own choice and that reasonably satisfies the Indemnified party, provided that the Indemnifier party conducts the defense of such notice to assume a claim actively and diligently. If the conduct and control, through counsel reasonably acceptable to Indemnifier party assumes the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faitha claim, the Indemnified Party shall party agrees to reasonably cooperate so long as it is not pay or settle any materially prejudiced thereby and the Indemnifier party (a) irrevocably acknowledges in writing full responsibility for the outcome and agrees to fully indemnify the Indemnified party, and (b) furnishes satisfactory evidence of the financial ability to indemnify the Indemnified party. The Indemnified party may retain separate co-counsel at its own cost and expense and may participate in the defense of such a claim. Notwithstanding the foregoing, Indemnifier party will not consent to the entry of any judgment or enter into any settlement with respect to a Third Party Claim without the prior written consent of the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementparty, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt , provided that such consent shall be granted in connection with any settlement (i) containing a full release of the Indemnified Party’s notice party and (ii) in the case of a claim of indemnity hereunder that it elects to undertake the defense thereof; consent from the Indemnified party, involves only monetary damages. In the event that the Indemnifier party does not defend or ceases to conduct a defense of such Third Party shall have the right to contestClaim, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of (c) the Indemnified Partyparty may defend against, and, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to, such Third Party Claim, (d) the Indemnifier party will reimburse the Indemnified party promptly and periodically for the costs of defending against such Third Party Claim, including reasonable attorneys' fees and expenses and (e) the Indemnifier party will remain responsible for any Losses the Indemnified party may endure as a result of such Third Party Claim to such claim or consent to entry of any judgmentthe full extent provided in this Article 6.

Appears in 1 contract

Samples: Agreement (Win Gaming Media, Inc.)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) Person is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under in accordance with this Article VIIIIX, such Indemnified Party shall promptly notify the party obligated to indemnify Buyer or the Seller, as applicable, in writing of such Indemnified Party (such notified partyclaim, setting forth in reasonable detail the claim, the “Responsible Party”) of facts giving rise to such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except claim and references to the extent that provisions of this Agreement pursuant to which such claim for indemnification was made, including, if applicable, the Responsible representation or warranty with respect to which such claim is made (the “Third Party is actually and materially prejudiced therebyNotice”). The Responsible Party Buyer or the Seller, as applicable, shall have 15 thirty (30) calendar days after receipt of such a Third Party Notice to provide written notice (the “Control Notice”) to assume the Indemnified Party that the Indemnitor will undertake to conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof. The delivery of a Control Notice shall constitute an admission by the Indemnitor of its indemnification obligation hereunder with respect to such claim, and and, subject to the limitations contained herein, its undertaking to pay directly all Losses incurred in connection therewith. If a Control Notice is delivered, the Indemnified Party shall cooperate with it the Indemnitor in connection therewith; provided, that the Responsible Party shall permit and the Indemnified Party to may participate in (but not control) such settlement or defense through counsel chosen by such Indemnified Party, provided, Party and paid at its own expense (which expense shall not constitute part of any Loss that is the fees and expenses subject of such counsel shall be borne by such Indemnified Partyindemnity under this Article IX). So long as such Third Party Notice is delivered in a timely manner and satisfies the Responsible Party is reasonably contesting any such claim requirements hereof in good faithall material respects, the litigation expenses incurred by the Indemnified Party prior to receipt of the Control Notice shall constitute part of any Loss that is the subject of indemnity under this Article IX. If the Buyer or the Seller, as applicable, does not pay deliver the Control Notice within thirty (30) calendar days after receipt of a Third Party Notice, or settle any otherwise fails to defend such claim actively in good faith within a reasonable time after receipt of a Third Party Notice, but either (A) admits to the Indemnified Party in writing its indemnification obligation hereunder with respect to such claim. Notwithstanding , and, subject to the foregoinglimitations contained herein, its undertaking to pay directly all Losses incurred in connection therewith, or (B) its indemnification obligation hereunder is confirmed by a court of competent jurisdiction through the entry of a declaratory judgment or similar order, then the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise of the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant therefor, the Indemnitor shall thereafter have no right to this Agreement. The Responsible Party shall not, except with the consent of challenge the Indemnified Party’s defense therein, enter into any settlement that does not include as an unconditional term thereof and the giving litigation expenses incurred by the person Indemnified Party in defending the claim shall constitute part of any Loss that is the subject of indemnity under this Article IX; provided, that in the event neither clause (A) nor clause (B) is satisfied, then in addition to the rights set forth, above, in this sentence, the Indemnified Party shall have the right to settle or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to compromise such claim or consent to the entry of any judgmentjudgment with respect to such claim, and the Indemnitor shall thereafter have no right to challenge the Indemnified Party’s settlement, compromise or consent to judgment therein.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ari Network Services Inc /Wi)

Third Party Claims. (a) If a claim, action, suit any lawsuit or proceeding by a third party (a “Third Party Claim”) enforcement action is made filed against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified a Claim Notice shall be given to the Indemnifying Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall as promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claimsas practicable; provided, that however, the failure of any Indemnified Party to so notify give timely notice shall not relieve the Responsible Party of its obligations affect rights to indemnification hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced therebydemonstrates actual damage caused by such failure. The Responsible After such notice, if the Indemnifying Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnify hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action; (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party's cost, risk and expense of unless the Responsible Party, of named parties to such action or proceeding includes both the settlement or defense thereof, Indemnifying Party and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to participate in such settlement or defense through counsel chosen by such Indemnified Party that are different from or additional to those available to the Indemnifying Party, provided, that in which case the Indemnified Party shall also have the right to employ its own counsel in any such case with the reasonable fees and expenses of such counsel being borne by the Indemnifying Party; and (iii) to compromise or settle such claim, which compromise or settlement shall be borne by such made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. So long as Notwithstanding anything in this Article VIII to the Responsible Party contrary, (i) if there is reasonably contesting any such claim in good faith, a reasonable probability than an Indemnifiable Claim may materially and adversely affect the Indemnified Party shall not pay Party, other than as a result of money damages or settle any such claim. Notwithstanding the foregoingother money payments, the Indemnified Party shall have the right to pay or settle any such claim, provided that participate in such event it shall waive any right to indemnity therefor by defense, compromise or settlement and the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented to such payment or settlementnot, without the Indemnified Party's written consent (which consent will shall not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest), settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim Indemnifiable Claim or consent to entry of any judgmentjudgment in respect thereof unless such settlement, compromise or consent includes as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such Indemnifiable Claim. If the Indemnifying Party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the Indemnified Party will (upon delivering such notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such third party claim on behalf of and for the account and risk of the Indemnifying Party.

Appears in 1 contract

Samples: Asset Purchase Agreement (Amedisys Inc)

Third Party Claims. Promptly after receipt by any party (athe “Indemnitee”) If of notice of any Claim or the commencement of any action against it in respect of which indemnity or reimbursement may be sought hereunder (an “Assertion”), or any Claim whatsoever with respect to infringement by a claim, action, suit or proceeding by party of Intellectual Property Rights of a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIto the Licensor Design, Licensor product, Licensee Design or Licensee product, as the case may be, such Indemnified Party Indemnitee shall promptly notify give written notice of the Assertion to the party obligated to indemnify such Indemnified Party provide indemnification pursuant to this Article 9 (such notified party, the “Responsible PartyIndemnitor) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby). The Responsible Party Indemnitor shall have 15 days after receipt of such notice the right and the obligation to assume the conduct defense of such Assertion, at its own expense, with counsel chosen by the Indemnitor. Notwithstanding that the Indemnitor shall be obligated to assume the defense of any Assertion, the Indemnitee shall have the right to participate in the investigation and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through separate counsel chosen by such Indemnified PartyIndemnitee, provided, that but in such event the fees and expenses of such counsel shall be borne paid by such Indemnified PartyIndemnitee, unless: (i) the Indemnitor shall have agreed to pay such fees and expenses; or (ii) the Indemnitor shall have failed to assume the defense of such Assertion. So long as Notwithstanding anything to the Responsible Party is reasonably contesting any such claim contrary in good faiththis Article 9, the Indemnified Party Indemnitor shall not pay or settle any not, without the written consent of such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, Indemnitee (which consent will shall not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestwithheld or delayed), settle or compromise any action in any manner that materially and adversely affects such Indemnitee, other than as a result of money damages or other money judgments, provided, however, that the claimIndemnitor may, at without the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the written consent of the Indemnified PartyIndemnitee, enter into settle or compromise any settlement that does not include action or consent to the entering of any judgment which is for money damages only so long as the Indemnitor pays such money damages, and includes as an unconditional term thereof the giving delivery by the person claimant or persons asserting plaintiff to such claim to all Indemnified Parties Indemnitee of an unconditional a duly executed written release of such Indemnitee from all liability in respect of such Assertion. The obligation of each Indemnitor under this Article 9 is conditioned on the Indemnitee’s agreement that if the Licensor Design, Licensor product, Licensee Design or Licensee product, or the use or operation thereof, becomes, or is likely to become, the subject of a Claim, the Indemnitee will permit Indemnitor, at its option and expense, either to procure the right for the other party to continue using the Intellectual Property or to replace or modify with respect a mutually acceptable substitute (acceptance not to such claim be unreasonably withheld) having equal or consent to entry of any judgmentsuperior functional capability so that it becomes non-infringing.

Appears in 1 contract

Samples: License Agreement (Nstor Technologies Inc)

Third Party Claims. (a) If a claimIn the event that any Action is instituted, actionor that any claim is asserted, suit or proceeding by a third any Person not party to this Agreement in respect of an indemnifiable matter hereunder (a “Third Party Claim”) is made against ), the Indemnified Person seeking indemnification for any person related Loss shall notify the Indemnifying Party of any such Action or entity entitled to indemnification pursuant to Section 8.2 hereof claim promptly after receiving notice thereof (an each, a Indemnified PartyThird Party Indemnification Claim Notice”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, however, that no delay on the failure to so notify part of the Indemnified Person in giving any such notice shall not relieve the Responsible an Indemnifying Party of its any indemnification obligations hereunderunless, except and only to the extent that the Responsible that, such Indemnifying Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt by such delay and then only to the extent of such notice prejudice. Subject to the provisions of this Section 8.3.3, and assuming the Indemnified Person does not have the right to elect or does not choose to elect in its Third Party Indemnification Claim Notice to assume the defense of the Third Party Claim in accordance with clause (d) of this Section 8.3.3, the Indemnifying Party shall be entitled at its own expense (in the case of the Stockholders’ Representative, solely on behalf of the Effective Time Holders) to conduct and control, control the defense and settlement of such Third Party Claim on behalf of the Indemnified Person through counsel chosen by the Indemnifying Party and reasonably acceptable to the Indemnified Person if the Indemnifying Party notifies the Indemnified Person in writing within 30 days (or sooner, if the nature of the Third Party Claim so requires) of its intent to do so and confirms that the Indemnifying Party shall be obligated to indemnify the Indemnified Person against all resulting Losses in accordance with this Agreement. If the Indemnifying Party does not elect within 30 days (or sooner, if the nature of the Third Party Claim so requires) to defend against, negotiate, settle or otherwise deal with any Third Party Claim, the Indemnified Person may defend against, negotiate, settle or otherwise deal with such Third Party Claim with counsel of its choice at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Indemnifying Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. (b) If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestdefend against, negotiate, settle or compromise otherwise deal with any Third Party Claim: (i) the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of use its commercially reasonable efforts to defend such Third Party Claim; (ii) the Indemnified PartyPerson, enter into prior to the period in which the Indemnifying Party assumes the defense of such matter, may take such reasonable actions to preserve any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to and all Indemnified Parties of an unconditional release from all liability rights with respect to such claim or consent to entry of any judgment.44

Appears in 1 contract

Samples: Execution Draft Agreement and Plan of Merger (Dare Bioscience, Inc.)

Third Party Claims. (a) If In the event that an Indemnified Party desires to make a claim, claim against an Indemnifying Party under Section 15.1 above in connection with any action, suit suit, proceeding or proceeding demand at any time instituted against or made upon the Indemnified Party by a third party any Person (other than Sellers, Buyers or any of their Affiliates) for which the Indemnified Party make seek indemnification hereunder (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such the Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that Third Party Claim and of the failure to so notify shall not relieve the Responsible Party Indemnified Party’s claim of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyindemnification with respect thereto. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to notify the Indemnified Party at if it has elected to assume the expense defense of the Responsible Party, of the settlement or defense thereof, and the Indemnified such Third Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified PartyClaim, provided, that the fees and expenses Indemnified Party shall in any event be entitled to take such actions as are reasonably necessary to avoid prejudicing the Indemnified Party’s rights with respect to such Third Party Claim during such 30-day period while it awaits notice from the Indemnifying Party. Once the Indemnifying Party elects to assume the defense of such counsel Third Party Claim, the Indemnifying Party shall be borne by entitled at its own expense to conduct and control the defense and settlement of such Indemnified Party. So long as the Responsible Third Party is reasonably contesting any such claim in good faith, Claim through counsel of its own choosing; provided that the Indemnified Party shall not pay or settle any may participate in the defense of such claim. Notwithstanding the foregoing, the Indemnified Third Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldClaim with its own counsel at its own expense. If the Responsible Indemnifying Party does not fails to notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; Third Party Claim, the Indemnified Party shall have be entitled to assume the right to contest, settle or compromise the claim, defense of such Third Party Claim at the expense of the Responsible Indemnifying Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall notprovided, except with the consent of that the Indemnified Party may not settle any Third Party Claim without the Indemnifying Party’s consent (such consent not be unreasonably withheld). For the avoidance of doubt, enter into any settlement that does claim for indemnification for any matter not include as an unconditional term thereof involving a Third-Party Claim may be asserted by notice to the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release party from all liability with respect to such claim or consent to entry of any judgmentwhom indemnification is sought.

Appears in 1 contract

Samples: Stock Purchase Agreement (Ctpartners Executive Search Inc.)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)either of the indemnified parties, and if such Indemnified Party either of the indemnified parties intends to seek indemnity with respect thereto under this Article VIIIXIV, such Indemnified Party indemnified party shall promptly notify Purchaser or Seller, as the party obligated to indemnify such Indemnified Party (such notified partycase may be, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible Party indemnifying party shall have 15 thirty (30) days after receipt of such the above-mentioned notice to assume the undertake, conduct and control, through counsel reasonably acceptable of its own choosing (subject to the Indemnified Party at the expense consent of the Responsible Partyindemnified party, of such consent not to be unreasonably withheld or delayed) and at its expense, the settlement or defense thereoftherefor, and the Indemnified Party indemnified party shall cooperate with it in connection therewith; providedprovided that: (a) the indemnifying party shall not thereby permit to exist any lien, that encumbrance or other adverse charge upon any asset of any indemnified party; (b) the Responsible Party indemnifying party shall permit the Indemnified Party indemnified party to participate in such settlement or defense through counsel chosen by such Indemnified Partythe indemnified party, provided, provided that the fees and expenses of such counsel shall be borne by the indemnified party; and (c) the indemnifying party shall agree promptly to reimburse the indemnified party for the full amount of any loss resulting from such Indemnified Partyclaim and all related expenses incurred by the indemnified party within the limits of this Article XIV. So long as the Responsible Party indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party indemnified party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to pay or settle any such claim, provided that in such event it they shall waive any right to indemnity therefor hereunder by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldindemnifying party. If the Responsible Party indemnifying party does not notify the Indemnified Party indemnified party within 15 thirty days after the receipt of the Indemnified Partyindemnified party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party indemnified party shall have the right to contest, settle or compromise the claim, claim in the exercise of its exclusive discretion at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreementindemnifying party. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.ARTICLE XV

Appears in 1 contract

Samples: Escrow Agreement

Third Party Claims. (a) If a claim, action, suit or proceeding by In the event that an Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) is made against any person or entity entitled to that the Indemnified Party reasonably believes may result in indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such the Indemnified Party shall promptly notify the party obligated to indemnify such Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party (such notified party, the “Responsible is a Parent Indemnified Party) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible Indemnifying Party shall have 15 days after receipt of such notice to assume (or the conduct and control, through counsel reasonably acceptable to Securityholder Representative Committee if the Indemnified Party at the expense is a Parent Indemnified Party) shall have ten (10) days from receipt of the Responsible Party, of the settlement or defense thereof, and notice regarding a Third Party Claim to notify the Indemnified Party shall cooperate with it in connection therewith; provided, that whether or not the Responsible Indemnifying Party shall permit (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) will, at its sole cost and expense, defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) timely gives notice that it intends to defend a Third Party Claim, it may, except as hereafter provided, undertake and conduct the defense of such Third Party Claim. An Indemnified Party shall be entitled, to participate in such settlement (at its sole cost), but not to determine or conduct, the defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, Third Party Claim. If the Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party shall is a Parent Indemnified Party) does not pay or settle any so elect to undertake and conduct the defense of such claim. Notwithstanding the foregoingThird Party Claim, the Indemnified Party shall have the right to pay or defend such claim as the Indemnified Party deems reasonably appropriate and the Indemnified Party shall be entitled to indemnification from the Company Securityholder Indemnifying Parties therefor to the extent indemnifiable hereunder; provided, however, that an Indemnified Party shall not settle any such claim, provided that in such event it shall waive any right to indemnity therefor by claim except with the Responsible prior written consent of the Indemnifying Party (or from the Escrow Account, as Securityholder Representative Committee if the case may be, for such claim unless the Responsible Indemnified Party shall have consented to such payment or settlement, is a Parent Indemnified Party) (which consent will not be unreasonably withheld, conditioned or delayed). If Notwithstanding the Responsible Party does not notify foregoing, (x) to the extent the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of is a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Parent Indemnified Party, enter into any settlement that does the Securityholder Representative Committee shall not include as an unconditional term thereof be entitled to assume or maintain control of the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry defense of any judgment.Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or

Appears in 1 contract

Samples: Agreement and Plan of Merger (Quality Systems, Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (or, in the case of a Buyer Indemnitee seeking indemnification, such Buyer Indemnitee shall promptly notify the Representative) (such notified party, the “Responsible Party”) of such claims; provided, provided that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 30 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, providedprovided that, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 30 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Viasys Healthcare Inc)

Third Party Claims. All claims for indemnification relating to third party claims (aother than claims with respect to Taxes) If a claim, action, suit shall be asserted and resolved as set forth in this Section 10.4. In the event that any written claim or proceeding demand for which an Indemnifying Party would be liable is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIparty, such Indemnified Party shall promptly promptly, but in no event more than 30 days following such Indemnified Party’s receipt of such claim or demand, notify the party obligated Indemnifying Party of such claim or demand and the amount or the estimated amount thereof to indemnify the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the “Claim Notice”). The Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the shall not be foreclosed by any failure to so notify shall not relieve provide timely notice of the Responsible existence of a third party claim or demand to the Indemnifying Party of its obligations hereunder, except to the extent that (and only to the Responsible extent) such failure causes the Losses for which the Indemnifying Party is actually and otherwise obligated to indemnify to be materially prejudiced therebygreater than such Losses would have been had the Indemnified Party so promptly notified the Indemnifying Party hereunder. The Responsible Indemnifying Party shall have 15 30 days after from the delivery or receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (a) whether or not the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such notice claim or demand and (b) whether or not it desires to assume defend the conduct Indemnified Party against such claim or demand. All costs and controlexpenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, through and shall be paid by, the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the (i) right to defend the Indemnified Party by appropriate proceedings and (ii) to use or retain counsel in connection with such defense that is reasonably acceptable to the Indemnified Party. The Indemnified Party at shall make available to the expense of the Responsible PartyIndemnifying Party all information reasonably available to such Indemnified Party relating to such claim or demand. In addition, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that and the Responsible Indemnifying Party shall permit render to each other such assistance as may reasonably be requested in order to ensure the Indemnified Party to participate in such settlement or proper and adequate defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim or demand. The Party in good faithcharge of the defense shall keep the other Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If any Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. In the event that the Indemnifying Party does not elect to defend the claim, the Indemnified Party shall not pay settle a claim or settle any such claim. Notwithstanding demand without the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with without the prior written consent of the Indemnified Party, enter into settle, compromise or offer to settle or compromise any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all or demand (i) on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Parties Party without the written consent of an unconditional the Indemnified Party and (ii) without obtaining a (a) release from all liability with respect to such claim or consent to entry demand and (b) the dismissal with prejudice of any judgmentlitigation or other proceeding with respect to such claim or demand, in each case for the benefit of and in form and substance reasonably satisfactory to the Indemnified Party. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if the same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder to the extent any Losses are sustained which are otherwise the subject of indemnification under this Section 10. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party will give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party shall use its commercially reasonable efforts in the defense of all such claims.

Appears in 1 contract

Samples: Asset Purchase Agreement (Azz Inc)

Third Party Claims. (a) If With respect to a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of the Claim Notice the Indemnifying Party acknowledges in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such notice lawsuit or action, the Indemnifying Party shall be entitled, if it so elects at its own cost, risk and expense, (i) to assume take control of the conduct defense and controlinvestigation of such lawsuit or action, through counsel (ii) to employ and engage attorneys of its own choice, but, in any event, reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of to handle and defend the settlement same unless the named parties to such action or defense thereof, proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to participate in such settlement or defense through counsel chosen by such Indemnified Party that are different from or additional to those available to the Indemnifying Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, which event the Indemnified Party shall not pay be entitled, at the Indemnifying Party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle any such claim. Notwithstanding lawsuit or action, which compromise or settlement shall be made only with the foregoing, written consent of the Indemnified Party shall have the right Party, such consent not to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify fails to assume the Indemnified Party defense of such Claim within 15 30 calendar days after the receipt of the Indemnified Claim Notice, the indemnified party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall ) have the right to contest, settle or compromise the claimundertake, at the expense Indemnifying Party's cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Responsible Indemnifying Party. If the Indemnified Party assumes the defense of the Claim, but the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall not thereby waive be liable for any settlement of any action effected pursuant to and in accordance with this SECTION 16.7 and for any final judgment (subject to any right of appeal) and the Indemnifying Party agrees to indemnity therefor pursuant indemnify and hold harmless an Indemnified Party from and against any Damages by reason of such settlement or judgment. If there is a dispute as to the indemnification obligations of any party under this Agreement. The Responsible Party shall notSECTION 16.7, except with the consent of then the Indemnified PartyParty may bring an action against the Indemnifying Party in any court located in Los Angeles, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentCalifornia.

Appears in 1 contract

Samples: Settlement Agreement and Mutual Release (Brilliant Digital Entertainment Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIIIX, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the . The failure to so notify provide such notice shall not relieve the Responsible Party result in a waiver of its obligations hereunder, any right to indemnification hereunder except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced therebyby such failure. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified Party shall reasonably cooperate with it in connection therewith; provided. Notwithstanding the foregoing, that the Responsible an Indemnified Party shall permit have the right to employ separate counsel at the Indemnifying Party’s expense if the named parties to any such proceeding (including any impleader parties) include both such Indemnified Party to participate in such settlement or defense through counsel chosen by and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, provided, that the fees Indemnifying Party shall not have the right to assume the defense thereof and the reasonable expenses of such separate counsel shall be borne by such at the expense of the Indemnifying Party). In no event shall an Indemnifying Party be required to pay the expenses of more than one (1) separate counsel for the Indemnified PartyParties. So long as the Responsible Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any claim without the prior written consent of the Indemnifying Party, such claimconsent not to be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle for money only any such claim; provided that, provided that in such event event, it shall waive any right to indemnity therefor therefore by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Share Purchase Agreement (Watson Pharmaceuticals Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) arises as to which CIBER is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof from Seller or the Shareholder hereunder, CIBER (an “the "Indemnified Party”), and if such Indemnified Party intends ") shall endeavor to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify advise Seller or the party obligated to indemnify such Indemnified Party Shareholder (such notified party, the “Responsible "Indemnifying Party") of such claims; providedthe claim within five business days after receipt of a summons, or within ten (10) business days after receipt of other written communication giving information as to the nature of the claim, by the Indemnified Party, provided that the failure to so notify shall not relieve limit the Responsible Indemnified Party's right to indemnification under Section 4 unless such failure materially prejudices the ability of the Indemnifying Party of its obligations hereunder, except to defend such third party claim and then only to such extent. The Indemnifying Party shall not be liable or responsible for any expenses which are incurred by the Indemnified Party before such notice has been given to the extent that Indemnifying Party, nor bound by any settlements made by the Responsible Indemnified Party is actually and materially prejudiced therebybefore such notice. The Responsible Indemnifying Party shall have 15 shall, within the lesser of twenty (20) days after receipt of notification of the claim from the Indemnified Party or five (5) days before an answer is required to be filed, advise the Indemnified Party whether the Indemnifying Party will undertake the defense of such notice to assume claim on behalf of the conduct and controlIndemnified Party and, through counsel if so, shall specify the name of the attorney who will handle the matter, which attorney shall be reasonably acceptable satisfactory to the Indemnified Party at and shall not have any present or potential conflict in representing the expense interests of both parties. If the Indemnifying Party timely notifies the Indemnified Party that it will undertake the defense of such claim and agrees that it is legally obligated to indemnify the Indemnified Party hereunder and shall thereafter diligently provide such defense, such counsel shall have control of the Responsible defense, but the Indemnified Party may participate in the defense with its own counsel paid for by the Indemnified Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement not settle or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any compromise such claim in good faith, without the Indemnified Party shall not pay or settle any such claim. Notwithstanding prior consent of the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementIndemnifying Party, which consent will shall not be unreasonably withheld. If the Responsible Indemnifying Party does not notify fails timely to advise the Indemnified Party within 15 days after that it will undertake the receipt defense of such claim on behalf of the Indemnified Party’s notice of a claim of indemnity hereunder , fails to agree that it elects is legally obligated to indemnify the Indemnified Party hereunder or fails diligently to pursue such defense, then the Indemnified Party may undertake the defense thereof; the Indemnified Party shall have the right to contest, of such claim with its own counsel and may settle or compromise the claimsuch claim in its sole discretion, all at the expense of the Responsible Indemnifying Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Agreement (Ciber Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by In the event Parent becomes aware of a third party claim (a “Third Party Claim”) is made that Parent reasonably believes may result in a demand against any person the Escrow Fund or entity entitled to for other indemnification pursuant to Section 8.2 hereof this Article VII, Parent shall timely notify the Shareholder Representative (or, in the event indemnification is being sought hereunder directly from an “Indemnified Indemnifying Party”), such Indemnifying Party) of such claim, and if the Shareholder Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Party Claim except to the extent that receipt of such documents would waive any claim of privilege by such Indemnified Party intends to seek indemnity with respect thereto and such Indemnified Party’s counsel and representation by such counsel of both parties would be inappropriate under this Article VIIIapplicable standards of professional conduct. The Shareholder Representative shall be entitled on behalf of the Indemnifying Parties (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnified Indemnifying Party shall promptly notify the party obligated be entitled), at their expense, to indemnify such Indemnified Party (such notified partyparticipate in, but not to determine or conduct, the “Responsible Party”) defense of such claims; provided, that the Third Party Claim. The failure to so notify the Shareholder Representative shall not relieve the Responsible Party Indemnifying Parties of its obligations hereunderany Liability, except to the extent and only to the extent the Shareholder Representative demonstrates that the Responsible defense of such Third Party Claim is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party Parent shall have the right in its sole discretion to pay or conduct the defense of, and to settle any such claimThird Party Claim; provided, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Accounthowever, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall notthat, except with the consent of the Indemnified Shareholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, enter into such Indemnifying Party) (which consent shall not be unreasonably withheld) no such settlement shall be determinative of the amount of any Losses or whether such Losses shall be indemnifiable pursuant to this Article VII. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts incurred or accrued by the Indemnified Parties in defense of such Third Party Claim, regardless of the outcome of such claim, shall be deemed Losses hereunder. In the event that the Shareholder Representative has consented in writing to any settlement that does not include as an unconditional term thereof of a Third Party Claim, the giving Indemnifying Parties shall have no power or authority to object under any provision of this Article VII to the amount of any claim by Parent against the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability Escrow Fund with respect to such claim or consent to entry of any judgmentsettlement.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Electronic Arts Inc.)

Third Party Claims. In the event that a claim for indemnification (a"Claim") If involves a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “the Indemnified Party”), and if such the Indemnifying Party shall notify the Indemnified Party intends in writing within ten business days after receipt of written notice from the Indemnified Party if it agrees to seek indemnity with respect thereto under this Article VIII, such undertake the defense thereof. The written notice provided to the Indemnifying Party from the Indemnified Party shall be delivered promptly notify following the party obligated Indemnified Party's obtaining knowledge of the Claim and shall state the basis of the Claim with reasonable specificity, including the Section or Sections of this Agreement alleged to indemnify have been breached. If the Indemnifying Party so notifies the Indemnified Party, then the Indemnifying Party shall control such Indemnified Party (such notified party, the “Responsible Party”) defense and shall bear all costs of such claims; defense, provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to may participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that it (the fees and expenses of such counsel which shall be borne by such the Indemnified Party). So long as Notwithstanding anything in this Section 8.5 to the Responsible contrary, the Indemnifying Party is reasonably contesting any such claim in good faithmay, with the consent of the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, (which consent will shall not be unreasonably withheld), settle or compromise any action or consent to the entry of any judgment which includes as a term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a duly executed written unconditional release of the Indemnified Party from all liability in respect of such action, which release shall be reasonably satisfactory in form and substance to counsel for the Indemnified Party. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 ten business days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Notwithstanding the foregoing, the Indemnified Party, during the period the Indemnifying Party shall notis determining whether to elect to assume the defense of a matter covered by this Section 8.5, except may take such reasonable actions as it deems necessary to preserve any and all rights with respect to the consent matter, without such actions being construed as a waiver of the Indemnified Party, enter into 's rights to defense and indemnification pursuant to this Agreement. No failure to provide any settlement that does not include as an unconditional term thereof notice required by this Section 8.5 shall relieve the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry Indemnifying Party of any judgment.obligation to indemnify the Indemnified Party hereunder except to the extent that the Indemnifying Party is actually prejudiced thereby. ARTICLE IX

Appears in 1 contract

Samples: Asset Purchase Agreement (Hexcel Corp /De/)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)indemnified Party hereunder, and if such Indemnified a Party intends to seek indemnity with respect thereto under this Article VIIIChapter 8 (such Party being the “Indemnified Party”), such the Indemnified Party or Parties shall promptly (and in any case within thirty (30) days) notify the party obligated to indemnify such Indemnified other Party or Parties (such notified party, the “Responsible Indemnifying Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such the above-mentioned notice to assume the undertake, conduct and control, through counsel reasonably acceptable of its own choosing (subject to the Indemnified Party at the expense consent of the Responsible Indemnified Party, of such consent not to be unreasonably withheld) and at its expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that that: (i) the Responsible Indemnifying Party shall not thereby permit to exist any Lien upon any asset of the Indemnified Party, (ii) the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such the Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such the Indemnified Party, and (iii) the Indemnifying Party shall promptly reimburse the Indemnified Party for the full amount of any loss resulting from such claim and all related expenses incurred by the Indemnified Party within the limits of this Chapter 8. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor therefore by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldIndemnifying Party. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, claim in the exercise of its exclusive discretion at the expense of the Responsible Indemnifying Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.CHAPTER 9

Appears in 1 contract

Samples: Asset Purchase Agreement (Nautilus, Inc.)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third any party (a “Third Party Claim”) is made against any person or entity entitled to indemnification be indemnified pursuant to Section 8.2 hereof 10.02 (an “Indemnified Party”), and if "INDEMNIFIED PARTY") receives notice of the assertion by any third party of any claim or of the commencement by any such Indemnified Party intends third party of any Action (any such claim or Action being referred to seek indemnity herein as an "INDEMNIFIABLE CLAIM") with respect thereto under this Article VIIIto which another party hereto (an "INDEMNIFYING PARTY") is or may be obligated to provide indemnification, such the Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party in writing (such notified party, the “Responsible Party”"CLAIM NOTICE") of such claimsthe Indemnifiable Claim; provided, however, that the failure to so notify provide such notice shall not relieve or otherwise affect the Responsible obligation of the Indemnifying Party of its obligations to provide indemnification hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced therebyby such failure. (b) The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice the Claim Notice to assume defense of the conduct and controlIndemnifiable Claim; PROVIDED, through counsel reasonably acceptable HOWEVER, that the Indemnifying Party will be required to consult with the Indemnified Party at with respect thereto. If the expense Indemnifying Party assumes the defense of such Indemnifiable Claim, it will take all steps necessary to investigate, defend or settle such claim and will, subject to Section 10.01, hold the Responsible Party, Indemnified Party harmless from and against any and all Damages caused by or arising out of any settlement approved by the settlement Indemnifying Party or any judgment in connection with such Indemnifiable Claim. The Indemnified Party will have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that but the fees and expenses of such counsel shall employed by the Indemnified Party will be borne by such at the expense of the Indemnified Party. So long as Without the Responsible Party is reasonably contesting any such claim in good faith, written consent of the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementParty, which consent will not be unreasonably withheld, the Indemnifying Party will not consent to entry of any judgment or enter into any settlement that (a) provides for non-monetary relief or (b) does not include an unconditional and complete release of the Indemnified Party by the claimant or plaintiff making the Indemnifiable Claim. Failure by the Indemnifying Party to notify the Indemnified Party of its election to assume the defense of any Indemnifiable Claim within 30 days after its receipt of notice thereof will be deemed a waiver by the Indemnifying Party of its right to assume the defense of such Indemnifiable Claim if the Indemnified Party is materially prejudiced by such failure. In such event, the Indemnified Party may defend against such Indemnifiable Claim in any manner it deems appropriate and may settle such Indemnifiable Claim or consent to the entry of any judgment with respect thereto, provided that it acts reasonably and in good faith. (c) Buyer shall advance the costs and expenses required to defend any Indemnifiable Claim. If the Responsible Indemnified Party is the Buyer, such costs and expenses shall constitute Damages recoverable from the Escrow Shares. If the Indemnified Parties are the Shareholders, such costs and expenses shall constitute Damages for which Additional Shares shall be issued to the Shareholders. (d) If the Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder Claim Notice that it elects to undertake the defense thereof; of the Indemnifiable Claim described therein, or if the Indemnifying Party undertakes such defense but thereafter ceases to defend such Indemnifiable Claim, the Indemnified Party shall have the right to contest, settle or compromise the claim, at Indemnifiable Claim in the expense exercise of its reasonable discretion and acting in good faith and the Responsible Indemnified Party may recover its Damages from the Indemnifying Party, but shall not thereby waive any right subject to indemnity therefor pursuant to the limitations, and in the manner, set forth in this Agreement. The Responsible Article X; provided, however, that the Indemnified Party shall not, except with notify the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry Indemnifying Party of any judgment.compromise or settlement of any such Indemnifiable Claim. A-40

Appears in 1 contract

Samples: Agreement and Plan of Merger (Atc Communications Group Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by a Within 10 business days after an Indemnitee ------------------ receives notice of any third party (claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a “Third Party Claim”) claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against any person or entity entitled to indemnification pursuant to an Indemnitor under Section 8.2 hereof (an “Indemnified Party”)7, and if notify such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) Indemnitor in writing in reasonable detail of such claims; providedclaim or action and include with such notice copies of all notices and documents (including court papers) served on or received by the Indemnitee from such third party. Failure to give such written notice within the time period described above, that the failure to so notify shall not relieve release the Responsible Party of its obligations hereunder, Indemnitor except to the extent that the Responsible Party such party is actually and materially prejudiced therebyby such failure. The Responsible Party shall have 15 days after Upon receipt of such notice to assume notice, the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party Indemnitor shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party be entitled to participate in such claim or action, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee, and to settle or compromise such claim or action, provided that if such settlement or compromise -------- shall provide for any relief other than a monetary payment by the Indemnitor, such settlement or compromise shall be effected only with the consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed. After notice to the Indemnitee of the Indemnitor's election to assume the defense through of such claim or action, the Indemnitor shall not be liable to the Indemnitee under Section 7 for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation, provided that the Indemnitee shall have the right to employ -------- counsel chosen to represent it if (x) the employment of such counsel has been - specifically authorized in writing by the Indemnitor, (y) such Indemnified Partyclaim or action involves remedies other than monetary damages and such remedies, providedin the Indemnitee's reasonable judgment, could have a material adverse effect on such Indemnitee or (z) the named parties to any such third party claim (including impleaded parties) include both the Indemnitee and the Indemnitor and such Indemnitee shall have been advised in writing by its counsel that there may be conflicting interests between the Indemnitor and the Indemnitee in the legal defense of such third party claim, and in any such event the fees and expenses of such separate counsel shall be borne paid by the Indemnitor, provided that the -------- Indemnitor shall not be obligated to pay the fees or expenses of more than one separate counsel for all Indemnitees arising out the same claim or action. If the Indemnitor does not elect to assume the defense of such Indemnified Partyclaim or action within 30 days of the Indemnitee's delivery of notice of such a claim or action, the Indemnitor shall be deemed to have waived its right to assume the defense of such third party claim and the Indemnitee shall be entitled to assume the defense thereof. So long as If the Responsible Party Indemnitor fails to acknowledge in writing its indemnification obligation to the Indemnitee for such claim or action within a reasonable period following the request therefor by the Indemnitee, the Indemnitee shall be entitled to assume the defense of such claim or action in any manner it deems appropriate including, without limitation, settling any such third party claim or consenting to the entry of any judgment with respect thereto, provided that it acts reasonably and in good faith. Unless it has been conclusively determined through a final judicial determination (or settlement tantamount thereto) that the Indemnitor is not liable to the Indemnitee under this Section 7.2.3., the Indemnitee shall act reasonably contesting and in accordance with its good faith business judgment with respect to such defense, and shall not settle or compromise any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with action without the consent of the Indemnified PartyIndemnitor, enter into which consent shall not be unreasonably withheld or delayed. The parties hereto agree to render to each other such assistance as may reasonably be requested in order to insure the proper and adequate defense of any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim or action, including making employees available on a mutually convenient basis to all Indemnified Parties provide additional information and explanation of an unconditional release from all liability with respect any relevant materials or to testify at any proceedings relating to such claim or consent to entry of any judgmentaction.

Appears in 1 contract

Samples: Purchase Agreement (GTS Duratek Inc)

Third Party Claims. An Indemnified Party will give prompt written notice to Seller with a copy to the Escrow Agent (aif and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund) If of the commencement or assertion of any Legal Proceeding by any Person who is not a claim, action, suit or proceeding by a third party hereto (a “Third Party ClaimAction”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if in respect of which such Indemnified Party intends may seek indemnification hereunder. Each such notice shall set forth in reasonable detail (based on information then readily available to seek indemnity with respect thereto under the Indemnified Party) the basis for indemnification and to the extent readily ascertainable, the anticipated Losses. Subject to limitations set forth this Article VIIIARTICLE X, any failure to promptly notify Seller and, if applicable, the Escrow Agent will not relieve Seller of any liability that it may have to such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunderunder this ARTICLE X, except to the extent that such failure resulted in the Responsible Party is actually and notice being delivered after the expiration of the applicable survival period specified in Section 10.1 or unless the failure to give such notice materially prejudiced therebyprejudices Seller. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereofwill be entitled to have sole control over, and Seller will not be entitled to control (but will be entitled, on its own behalf, at its expense, to participate in, such participation to include the Indemnified right to make recommendations regarding outside legal counsel and budget to be used by such counsel), the defense, settlement, compromise, admission, and acknowledgment of any Third Party shall cooperate with it in connection therewithAction; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithhowever, the Indemnified Party may not effect the settlement or compromise of any such claim without the consent of Seller, which consent shall not pay be unreasonably conditioned, withheld or delayed. In the event that none of the Indemnified Parties elects to defend a Third Party Action, Seller may defend such Third Party Action at its sole cost and expense with counsel selected by Seller, and in such event, Seller shall not have any right to settle any or compromise such claim. Notwithstanding Third Party Action without the foregoingprior written consent of Parent and, if different from Parent, the Indemnified Party shall have against whom the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Third Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementAction has been asserted, which consent will shall not be unreasonably withheldconditioned, delayed or withheld unless such settlement or compromise would reasonably be expected to be materially adverse to Parent’s interests. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake The parties hereto will extend reasonable cooperation in connection with the defense thereof; the Indemnified of any Third Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor Action pursuant to this AgreementSection 10.6 and, in connection therewith, will furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be reasonably requested. The Responsible Party making such reasonable request shall notpay the other Party whose employee attends such conferences, except with discovery proceedings, hearings, trials, and appeals the consent reasonable value of such employee to the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof extent the giving by the person or persons asserting duration of such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentemployee’s requested attendance exceeds 40 hours.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Bazaarvoice Inc)

Third Party Claims. If any third person shall notify any party hereto (athe "Indemnified Party") If a claim, action, suit or proceeding by a third party with respect to any matter (a "Third Party Claim") is made which may give rise to a claim for indemnification against any person or entity entitled to indemnification pursuant to Section 8.2 hereof other party hereto (an “Indemnified the "Indemnifying Party”), and if such Indemnified Party intends to seek indemnity with respect thereto ") under this Article VIIIIX, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and then the Indemnified Party shall cooperate with it in connection therewithnotify the Indemnifying Party thereof promptly; providedprovided however, that no delay on the Responsible Party shall permit part of the Indemnified Party in notifying an Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is damaged or materially prejudiced from adequately defending such claim. In the event the Indemnifying Party notifies the Indemnified Party within 30 days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, (A) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of its choice, (B) the Indemnified Party may retain separate co-counsel as its sole cost and expense to participate in such settlement or defense through counsel chosen by such Indemnified Partybut not control the defense, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, (C) the Indemnified Party shall will not pay consent to the entry of any judgment or settle enter into any such claim. Notwithstanding settlement with respect to the foregoingmatter without the written consent of the Indemnifying Party (not to be withheld unreasonably), and (D) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party shall have from all liability with respect thereto, without the right written consent of the Indemnified Party (not to pay or settle any such claim, provided that in such be withheld unreasonably). In the event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party is assuming the defense thereof, within 15 30 days after the receipt Indemnified Party has given notice of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; matter, the Indemnified Party shall have the right to contestmay defend against, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that with respect to, the matter in any manner it reasonably may deem appropriate, and the Indemnifying Party shall be liable for the costs thereof. At any time after commencement of any such action, any Indemnifying Party may request an Indemnified Party to accept a bona fide offer from the other parties to the action for a monetary settlement payable solely by such Indemnifying Party (which does not include as an unconditional term thereof burden or restrict the giving by Indemnified Party nor otherwise prejudice it). Such settlement offer shall be accepted unless the person Indemnified Party determines that the dispute should be continued, and in such case, 42 the Indemnifying Party shall be liable for indemnity hereunder only to the extent of the lesser of (i) the amount of the settlement offer or persons asserting such claim to all (ii) the amount for which the Indemnified Parties of an unconditional release from all liability Party may be liable with respect to such claim or consent to entry action. In addition, the party controlling the defense of any judgmentThird Party Claim shall deliver, or cause to be delivered, to the other party copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in connection with the defense of the Third Party Claim, and timely notices of, and the right to participate in (as an observer) any hearing or other court proceeding relating to the Third Party Claim.

Appears in 1 contract

Samples: Asset Purchase Agreement (Avondale Financial Corp)

Third Party Claims. (a) If a claim, action, suit or proceeding In the case of any claim asserted by a third party (against a “Third Party Claim”) is made against any person or entity party entitled to indemnification pursuant to Section 8.2 hereof under this Agreement (an the “Indemnified Party”), and if notice shall be given by the Indemnified Party to the party required to provide indemnification (the “Indemnifying Party”) as soon as practicable after such Indemnified Party intends has actual knowledge of any claim as to seek which indemnity with respect thereto under this Article VIIImay be sought, such and the Indemnified Party shall, so long as the Indemnifying Party has acknowledged in writing it liability for indemnification hereunder, permit the Indemnifying Party (at the expense of such Indemnifying Party) to assume control over the defense of any third party claim or any litigation with a third party resulting therefrom; provided, however, that (a) the counsel for the Indemnifying Party who shall promptly notify conduct the party obligated defense of such claim or litigation shall be subject to indemnify such the approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed), (b) the Indemnified Party may participate in such notified partydefense at such Indemnified Party’s expense (which shall not be subject to reimbursement hereunder except as provided below), the “Responsible Party”and (c) of such claims; provided, that the failure by any Indemnified Party to so notify give notice as provided herein shall not relieve the Responsible Indemnifying Party of its obligations hereunder, indemnification obligation under this Agreement except and only to the extent that the Responsible such Indemnifying Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt damaged as a result of such notice failure to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Partygive notice. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except Except with the prior written consent of the Indemnified Party, no Indemnifying Party, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by the person each claimant or persons asserting plaintiff to such claim to all Indemnified Parties Party of an unconditional a general release from any and all liability with respect to such claim or litigation. Notwithstanding the foregoing, if both the Indemnifying Party and the Indemnified Party are parties to an action (or to separate actions covering substantially the same claims and subject matter where a determination in one action would have a res judicata effect in the other action or to an action and a related claim for indemnification) and the Indemnified Party shall in good faith determine that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect of such claim or any litigation relating thereto, the Indemnified Party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the Indemnifying Party; provided, however, that (i) if the Indemnified Party does so take over and assume control, the Indemnified Party shall not settle such claim or litigation without the prior written consent of the Indemnifying Party, such consent not to entry be unreasonably withheld or delayed, (ii) the Indemnifying Party shall at all times have the right to participate in the defense of such claim or action and (iii) if the nature of the claim or any litigation related thereto is of a type as to which liability has been allocated hereunder between the Indemnifying Party and the Indemnified Party based on whether such claim is based on pre-Closing or post-Closing conduct or in any other specified manner, then the Indemnified Party’s right to take over and assume control of the defense of such claim or litigation shall relate only to the portion of the liability therefore that has been so allocated to the Indemnified Party. If the Indemnifying Party does not accept the defense of any judgmentmatter as above provided within thirty (30) days after receipt of the notice from the Indemnified Party described above, the Indemnified Party shall have the full right to defend against any such claim or demand at the sole cost of the Indemnifying Party and shall be entitled to settle or agree to pay in full such claim or demand. In any event, the Indemnifying Party and the Indemnified Party shall reasonably cooperate in the defense of any claim or litigation subject to this Article 8 and the records of each shall be reasonably available to the other with respect to such defense.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Ventiv Health Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person Seller or entity entitled to indemnification pursuant to Section 8.2 hereof Buyer (an "Indemnified Party"), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIISection 14, such Indemnified Party shall promptly notify Buyer or Seller, as the party obligated to indemnify such Indemnified Party case may be (such notified partythe "Indemnitor"), the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party Indemnitor shall have 15 30 days after receipt of such notice to assume the undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that the Responsible Party Indemnitor shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, providedhowever, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party Indemnitor, at Indemnitor's cost and expense, (1) has undertaken the defense of, and assumed full responsibility for all Losses with respect to, such claim, and (2) is reasonably contesting any such claim in good faith, by appropriate proceedings, the Indemnified Party shall not pay or settle any such claim. Notwithstanding compliance by the foregoingIndemnitor with the preceding sentence, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, Indemnitor for such claim unless the Responsible Party shall have consented to such payment or settlementclaim. If, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder hereunder, the Indemnitor does not notify the Indemnified Party that it elects elects, at Indemnitor's cost and expense, to undertake the defense thereof; thereof and assume full responsibility for all Losses with respect thereto, or gives such notice and thereafter fails to contest such claim in good faith, the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Houston Exploration Co)

Third Party Claims. (a) If a claim, action, suit or proceeding Proceeding by a third party Person who is not a Party or an Affiliate thereof (a “Third Party Claim”) is made against any person or entity Person entitled to indemnification pursuant to Section 8.2 9.2 or Section 6.13(j) hereof (an “Indemnified Party”), and if such Indemnified Party Person intends to seek indemnity with respect thereto under this Article VIII9 or Section 6.13, such Indemnified Party shall promptly notify the party Party obligated to indemnify such Indemnified Party (or, in the case of a Buyer Indemnitee seeking indemnification, such Buyer Indemnitee shall promptly notify Sellers’ Representative, in each case, such notified partyParty, the “Responsible Party”) of such claims; provided, provided that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. Such notice shall identify in reasonable detail and in good faith the basis under which indemnification is sought pursuant to Section 9.2 or Section 6.13 (as the case may be) and enclose true and correct copies of any written document furnished to the Indemnified Party by the Person that instituted the Third Party Claim. The Responsible Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the EAST\134549672.25 70 expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall use commercially reasonable efforts to cooperate with it the Responsible Party in connection therewith; provided, provided that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that Party (the fees and expenses of such counsel shall be borne by such Indemnified Party). So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, ; provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for in respect of such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense or settlement thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons Person(s) asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. Notwithstanding anything in this Article 9 to the contrary, the Responsible Party shall not have the right to assume the defense under this Section 9.3 for any Third Party Claim (i) where material non-monetary relief is sought that is not merely incidental to the monetary relief that is sought, (ii) involving criminal or quasi-criminal allegations, (iii) that could reasonably be expected to materially adversely affect the Indemnified Party’s business, or (iv) involving the Responsible Party or its Affiliates as parties if counsel to the Responsible Party determines in good faith that joint representation would give rise to a conflict of interest, in each case, for which defense shall be assumed by the Indemnified Party with the right to retain (at the Responsible Party’s expense) counsel of its choice.

Appears in 1 contract

Samples: Purchase Agreement (Cimpress N.V.)

Third Party Claims. (a) If Promptly after the receipt by either Party of a claim, action, suit or proceeding notice of a Claim made by a third party Third Party that is the subject of indemnification pursuant to this Section 15 (a “collectively, "Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof "), such Party (an “the "Indemnified Party") shall deliver to the Party from which indemnification is sought (the "Indemnifying Party") a written notice that specifies in reasonable detail the basis of the claim for indemnification hereunder ("Notice of Indemnity Claim"). Subject to any applicable statute of limitation periods, and if such the failure of the Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) give a Notice of such claims; provided, that the failure to so notify Indemnity Claim shall not relieve the Responsible Indemnifying Party of its indemnification obligations hereunder, hereunder except to the extent that such failure shall result in material prejudice to the Responsible Party is actually and materially prejudiced therebyIndemnifying Party. The Responsible Indemnifying Party shall have 15 shall, at its sole expense and liability, assume the defense of any Third Party Claim within ten (10) business days after receipt of such notice a Notice of Indemnity Claim with respect thereto. Should the Indemnifying Party, within ten (10) business days after receipt of the Notice of Indemnity Claim, fail to (i) notify the Indemnified Party in writing of the Indemnifying Party's intention to assume the conduct and controldefense thereof, through or (ii) retain legal counsel reasonably acceptable satisfactory to the Indemnified Party at to conduct the expense defense of the Responsible Partysuch Third Party Claim, of the settlement or defense thereof, and then the Indemnified Party shall cooperate with it in connection therewith; providedbe entitled, at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense, compromise or settlement of such Third Party Claim. Provided that the Responsible Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall permit have the Indemnified Party right to participate in such exercise full control of the defense, compromise or settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified PartyThird Party Claim. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the The Indemnified Party shall have the right to pay engage separate legal counsel and to participate in the defense, compromise or settle any settlement thereof; provided, however, that the expenses of such claim, provided that in such event it legal counsel shall waive any right to indemnity therefor be paid by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after unless (i) the receipt Indemnifying Party has agreed in writing to pay such expenses, (ii) any relief other than the payment of money damages is sought against the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; Party or (iii) the Indemnified Party shall have one or more legal defenses available to it which are in conflict with those available to the right Indemnifying Party, in any of which cases identified in clause (i), (ii) or (iii), the expenses of such separate legal counsel shall be borne by the Indemnifying Party. The Party not assuming the defense of any Third Party Claim shall cooperate with the Party assuming such defense in any manner that the Party assuming such defense reasonably may request, except to contestthe extent such cooperation may result in liability or damages to the cooperating Party not indemnified against by the other Party hereunder. The Indemnified Party shall not settle or compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party unless the Indemnifying Party shall have failed to undertake the defense and control of such Third Party Claim in the manner hereinabove required. For any Third Party Claim in which the relief sought is other than monetary damages, the Indemnifying Party shall not settle or compromise the claim, at non-damage component of such Third Party Claim unless the expense Indemnified Party consents in writing to such compromise or settlement. The respective rights and remedies of the Responsible PartyParties in this Section 14.4 shall survive the expiration or termination of this Agreement until ninety (90) days following the expiration of the statute of limitations applicable to the Third Party Claim for which indemnification may be sought hereunder; provided, but that if a Notice of Claim respecting a Third Party Claim has been timely given, the limitations period shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible be extended until the final, binding and nonappealable resolution of such Third Party shall not, except with the consent of Claim and the Indemnified Party's right to indemnification hereunder, enter into any settlement that does not include but for only so long as an unconditional term thereof the giving by Indemnified Party continues to pursue its indemnification rights with reasonable diligence under the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentcircumstances.

Appears in 1 contract

Samples: Disease Management Services Agreement (HC Innovations, Inc.)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIIX, such Indemnified Party Party, shall promptly notify the party obligated to indemnify such notify, in writing, Purchaser, if a Newpark Indemnified Party, or Newpark, if a Purchaser Indemnified Party (such notified partyPurchaser and CCS, or Newpark, DFI and Newpark Texas, as the case may be, the “Responsible Indemnifying Party”) ), of such claims; provided, that the . The failure to so notify provide such written notice shall not relieve the Responsible Party result in a waiver of its obligations hereunder, any right to indemnification hereunder except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced therebyby such failure. The Responsible Indemnifying Party shall have 15 twenty (20) days after receipt of such notice to assume the elect to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided. Notwithstanding the foregoing, that the Responsible an Indemnified Party shall permit have the right to employ separate counsel at the Indemnifying Party’s expense and participate in (but not control) such defense if the named parties to any such proceeding include both such Indemnified Party to participate in such settlement or defense through counsel chosen by and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party. Notwithstanding the foregoing, provided, that in no event shall an Indemnifying Party be required to pay the fees and expenses of such counsel shall be borne by such Indemnified Partymore than one (1) separate counsel. So long as the Responsible Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claimclaim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim; provided, provided that that, in such event event, it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, (i) enter into any settlement that does not include include, as an unconditional term thereof thereof, the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim claim, or (ii) consent to entry of any judgmentjudgment that imposes injunctive or equitable relief.

Appears in 1 contract

Samples: Membership Interests Purchase Agreement (Newpark Resources Inc)

Third Party Claims. (a) If a claimNotwithstanding the provisions of section 9.6, promptly after receiving notice of any action, suit suit, proceeding or proceeding by a third party claim against an Indemnified Party or receipt of notice of the commencement of any investigation which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Indemnifying Party (a "Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”"), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly will notify the party obligated Indemnifying Party in writing of the particulars thereof, will provide copies of all relevant documentation to indemnify such Indemnified the Indemnifying Party (such notified partyand, unless the “Responsible Party”) Indemnifying Party assumes the defence thereof, will keep the Indemnifying Party advised of such claims; provided, that the failure progress thereof and will discuss all significant actions proposed. The omission so to so notify the Indemnifying Party shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to any liability which the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Party shall may have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party under this Agreement. The Indemnifying Party shall be entitled, at its own expense, to participate in and, to the expense extent it may wish to do so, assume the defence of any Third Party Claim, provided such defence is conducted by experienced and competent counsel. Upon the Responsible Party, of the settlement or defense thereof, and Indemnifying Party notifying the Indemnified Party shall cooperate with it in connection therewith; providedwriting of the Indemnifying Party's election to assume the defence and retaining counsel, that the Responsible Indemnifying Party shall permit not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with such defence. If such defence is assumed by the Indemnifying Party, the Indemnifying Party throughout the course thereof will provide copies of all relevant documentation to participate the Indemnified Party, will keep the Indemnified Party advised of the progress thereof and will discuss with the Indemnified Party all significant actions proposed. Notwithstanding the foregoing, any Indemnified Party shall have the right, at the Indemnifying Party's expense (except as specifically set out in such settlement or defense through (iii) below), to employ counsel chosen by of such Indemnified Party's choice, provided, that in respect of the fees and expenses defence of any Third Party Claim if: (i) the employment of such counsel shall has been authorized by the Indemnifying Party; or (ii) the Indemnifying Party has not assumed the defence and employed counsel therefor within a reasonable time after receiving notice of such Third Party Claim; or (iii) counsel retained by the Indemnifying Party or the Indemnified Party has advised the Indemnified Party that representation of both parties by the same counsel would be borne by such inappropriate because there may be legal defences available to the Indemnified Party. So long as Party which are different from or in addition to those available to the Responsible Indemnifying Party is reasonably contesting any such claim (in good faithwhich event and to that extent, the Indemnified Party shall not pay or settle any such claim. Notwithstanding be responsible for its own expenses and the foregoing, the Indemnified Indemnifying Party shall not have the right to pay assume or settle any such claim, provided direct the defence on the Indemnified Party's behalf) or that in such event it shall waive any right to indemnity therefor by there is a conflict of interest between the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify and the Indemnified Party within 15 days after (in which event the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Indemnifying Party shall not have the right to contest, settle assume or compromise direct the claim, at defence on the expense Indemnified Party's behalf). No admission of the Responsible Party, but liability and no settlement of any Third Party Claim shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with be made without the consent of the Indemnified PartyParty affected, enter into such consent not to be unreasonably withheld. No admission of liability shall be made and the Indemnifying Party shall not be liable for any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentThird Party Claim made without its consent, such consent not to be unreasonably withheld.

Appears in 1 contract

Samples: Master Purchase and Sale Agreement (Mdsi Mobile Data Solutions Inc /Can/)

Third Party Claims. Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action (a) If a claim, action, suit or proceeding including any action brought by a third governmental entity), such indemnified party (shall, if a “Third Party Claim”) claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission to so notify the indemnifying party shall not relieve such indemnifying party from any person or entity entitled liability which it may have to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto any indemnified party other than under this Article VIIISection 2.8, except to the extent such indemnifying party has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure. In any action brought against any indemnified party for which a claim of indemnification may be made against the indemnifying party, such Indemnified Party indemnified party shall promptly notify the indemnifying party obligated to indemnify such Indemnified Party (such notified party, of the “Responsible Party”) commencement of such claimsaction; provided, that the failure to so notify the indemnifying party shall not relieve the Responsible Party of its obligations hereunderindemnifying party from any liability that it may have under this Section 2.8, except to the extent that the Responsible Party is actually and such indemnifying party has been materially prejudiced thereby(through the forfeiture of substantive rights or defenses) by such failure. The Responsible Party indemnifying party shall have 15 days be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party and, after receipt notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such notice indemnified party under this Section 2.8 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however, that, (i) if the indemnifying party has failed to assume the conduct defense and control, through employ counsel reasonably acceptable or (ii) if the defendants in any such action include both the indemnified party and the indemnifying party and counsel to the Indemnified Party at indemnified party shall have concluded that there may be reasonable defenses available to the expense indemnified party that are different from or additional to those available to the indemnifying party, or if the interests of the Responsible Party, indemnified party reasonably may be deemed to conflict with the interests of the settlement or defense thereofindemnifying party, and then the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to pay or select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed (subject to the limits on indemnification set forth in the proviso of Section 2.8(b) hereof) by the indemnifying party as incurred. Notwithstanding any other provision of this Agreement, the indemnifying party shall not settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such indemnified claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with without the consent of the Indemnified Partyindemnified party, enter into any unless the settlement that thereof imposes no liability or obligation on, includes a complete release from liability of, and does not include as an unconditional term thereof contain any admission of wrong doing by, the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentindemnified party.

Appears in 1 contract

Samples: Registration Rights Agreement (ProPetro Holding Corp.)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIISection 6, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Indemnifying Party, of the settlement or defense thereof, thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (a) the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (b) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Section 6 and does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (First Advantage Corp)

Third Party Claims. (a) If a claim, action, suit any Indemnified Party receives notice of the assertion of any Claim or proceeding the commencement of any Action by a third party with respect to a matter subject to indemnity hereunder, notice thereof (a “Third Party ClaimNotice”) shall promptly be given to the Stakeholders’ Representative if the Third Party Notice is made against any person or entity entitled being given by a Parent Indemnified Party and to indemnification pursuant to Section 8.2 hereof (Parent if the Third Party Notice is being given by an Equityholder Indemnified Party”), which Third Party Notice shall specify in reasonable detail, to the extent known, the amount of the Claim, the date (if any) such item was incurred or suffered and if such Indemnified Party intends to seek indemnity with respect thereto the basis for indemnification under this Article VIII, and will include copies of all notices and documents (including court papers) served on or received by the Indemnified Party in connection with such Claim. The failure of any Indemnified Party to give timely notice hereunder shall not affect such Indemnified Party shall promptly notify the party obligated Party’s rights to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations indemnification hereunder, except to the extent that the Responsible Party is such delay or failure actually and materially prejudiced therebyprejudices the Indemnifying Parties’ ability to defend such Claim or Action. The Responsible After receipt of a Third Party Notice, the Indemnifying Parties shall have 15 days after receipt of such the right, but not the obligation, by providing written notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party acknowledging their obligation to indemnify the Indemnified Party pursuant to Section 8.1, to (i) take control of the defense and investigation of such Claim or Action, (ii) employ and engage attorneys of his own choice (subject to the approval of the Indemnified Party, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Parties’ sole cost and expense, and (iii) compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed; provided, that such consent will not be required (other than with respect to an item relating to Taxes) if such settlement includes an unconditional release of the Indemnified Party and otherwise provides solely for payment of monetary damages for which the Indemnified Party will be indemnified in full. The Indemnified Party shall, at the expense of the Responsible PartyIndemnifying Parties, cooperate in all reasonable respects with the Indemnifying Parties and their attorneys in the investigation, trial and defense of such Claim or Action and any appeal arising therefrom, including, if reasonably appropriate in the opinion of the settlement or defense thereofIndemnifying Party’s counsel, and related to the Third Party Claim in question, in making at the sole cost and expense of the Indemnifying Party any counterclaim against the third party claimant, or any cross complaint against any Person. The Indemnified Party may, at its own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Claim or Action and any appeal arising therefrom; provided, however, that if the Indemnifying Parties elect not to assume such defense and investigation or do not acknowledge in writing within a reasonable period (in light of the circumstances), not to exceed thirty (30) days, after receipt of the Third Party Notice (or such earlier date, if the failure to assume the defense on such earlier date would materially impair the ability of such Indemnified Party to defend such claim) their obligation to indemnify the Indemnified Party against any Losses arising from such Action, the Indemnified Party may (upon delivering notice to such effect to the Indemnifying Parties) retain separate counsel and defend such Claim or Action (all at the cost and expense of the Indemnifying Parties); provided that the Indemnifying Parties shall have the right to participate therein at their own sole cost and expense. Notwithstanding the Indemnifying Parties’ election to assume the defense of such Claim or Action or anything to the contrary herein, the Indemnified Party shall cooperate with it in connection therewith; providedhave, that upon giving prior written notice to the Responsible Party shall permit Indemnifying Parties, the Indemnified Party right to employ separate counsel and to participate in the defense of such settlement or defense through counsel chosen by such Indemnified PartyAction, providedand the Indemnifying Parties shall bear the reasonable fees, that the fees costs and expenses of such separate counsel for the Indemnified Party in each jurisdiction if, but only if, the Indemnified Party shall be borne by such Indemnified Party. So long as the Responsible Party is have reasonably contesting any such claim concluded in good faithfaith that (x) an actual or potential conflict of interest (including one or more legal defenses or counterclaims available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Parties) makes it inappropriate in the reasonable judgment of the Indemnified Party (upon and in conformity with the advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Parties or (y) the claim seeks nonmonetary relief which, if granted, could materially and adversely affect the Indemnified Party or its Affiliates. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not pay settle or settle compromise any such claim. Notwithstanding Third Party Claim for which it seeks indemnification hereunder without the foregoing, prior written consent of the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementIndemnifying Party, which consent will shall not be unreasonably withheld, conditioned or delayed. If Notwithstanding anything to the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestcontrary contained herein, settle or compromise the claim, at the expense of the Responsible Party, but this Section 8.3(b) shall not thereby waive any right apply with regard to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person Specified Litigation Matters or persons asserting such claim to all Indemnified Parties reimbursement of an unconditional release from all liability amount paid with respect to such claim Section 8.1(a)(iv) or consent to entry of any judgment8.1(a)(v).

Appears in 1 contract

Samples: Merger Agreement (Perrigo Co)

Third Party Claims. (a) If With respect to a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of the Claim Notice the Indemnifying Party acknowledges in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such notice lawsuit or action, the Indemnifying Party shall be entitled, if it so elects at its own cost, risk and expense, (i) to assume take control of the conduct defense and controlinvestigation of such lawsuit or action, through counsel (ii) to employ and engage attorneys of its own choice, but, in any event, reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of to handle and defend the settlement same unless the named parties to such action or defense thereof, proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to participate in such settlement or defense through counsel chosen by such Indemnified Party that are different from or additional to those available to the Indemnifying Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, which event the Indemnified Party shall not pay be entitled, at the Indemnifying Party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle any such claim. Notwithstanding lawsuit or action, which compromise or settlement shall be made only with the foregoing, written consent of the Indemnified Party shall have the right Party, such consent not to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify fails to assume the Indemnified Party defense of such Claim within 15 30 calendar days after the receipt of the Indemnified Claim Notice, the indemnified party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall ) have the right to contest, settle or compromise the claimundertake, at the expense Indemnifying Party's cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Responsible Indemnifying Party. If the Indemnified Party assumes the defense of the Claim, but the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall not thereby waive be liable for any settlement of any action effected pursuant to and in accordance with this Section 12(g) and for any final judgment (subject to any right of appeal) and the Indemnifying Party agrees to indemnity therefor pursuant to this Agreement. The Responsible indemnify and hold harmless an Indemnified Party shall not, except with the consent from and against any Damages by reason of the Indemnified Party, enter into any such settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.or

Appears in 1 contract

Samples: Asset Purchase Agreement (Signature Eyewear Inc)

Third Party Claims. (a) If a claim, action, Should any claim be made or suit or proceeding by be instituted against a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof hereunder (an "Indemnified Party”)") which, and if such Indemnified Party intends valid or prosecuted successfully, would be a matter for which they are entitled to seek indemnity with respect thereto be defended, saved harmless or indemnified under this Article VIII, such Indemnified Agreement (a "Third-Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithClaim"), the Indemnified Party shall not pay notify the parties responsible for such indemnification (the "Indemnifying Party") in writing concerning the same promptly after the assertion or settle commencement thereof. The Indemnifying Parties shall control the defense of any Third-Party Claim, with counsel reasonably satisfactory to the Indemnified Parties, and the Indemnifying Parties shall use their best efforts to defeat or minimize any loss resulting from such Third-Party Claim. The Indemnified Parties shall use their best efforts to minimize any Loss resulting from any such claimThird Party Claim, provided, however, that the provisions of this sentence shall not require any Indemnified Party to take any action which might interfere with its relationship with a client. Notwithstanding The Indemnifying Parties shall provide the foregoingIndemnified Parties with such information and opportunity for consultation as may reasonably be requested by the Indemnified Parties, and either they or any of them shall be entitled to participate in the defense of a Third-Party Claim and to engage counsel for such purpose at the expense of such Indemnified Party. The Indemnifying Parties shall have the right to settle Third- Party Claims against the Indemnified Parties on terms which are judged reasonable by the Indemnified Parties and such settlements shall be binding upon the Indemnified Parties and the Indemnifying Parties have been held harmless against or indemnified for amounts agreed to be paid or amounts paid in such settlement. No Indemnified Party shall have the right to pay or settle any such claim, provided that in such event Third-Party Claim against it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified PartyIndemnifying Parties, enter into any which consent shall not be unreasonably withheld where the settlement that of such claim does not include involve the payment of money damages or the admission of any liability or guilt on the party of the Indemnifying Party. The Indemnified Parties shall in any event render all such assistance as an unconditional term thereof the giving Indemnifying Parties shall reasonably request in the defense of any Third-Party Claim. All costs and expenses incurred by the person or persons asserting such claim to all Indemnifying Parties and the Indemnified Parties in connection with the defense of an unconditional release from all liability with respect to such claim or consent to entry of any judgmenta Third-Party Claim shall upon demand be paid by the Indemnifying Parties.

Appears in 1 contract

Samples: Acquisition Agreement (MDC Holdings Inc)

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Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIII6, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Indemnifying Party, of the settlement or defense thereof, thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified PartyParty and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Article 6 and does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.

Appears in 1 contract

Samples: Asset Purchase Agreement (Click Commerce Inc)

Third Party Claims. (a) If a claimAll claims for indemnification relating to third party claims shall be asserted and resolved as set forth in this section 12.3 subject, actionhowever, suit to the terms, conditions and limitations otherwise set forth in this Agreement. In the event that any written claim or proceeding demand for which an Indemnifying Party would be liable is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIparty, such Indemnified Party shall promptly promptly, but in no event more than 30 days following such Indemnified Party's receipt of such claim or demand, notify the party obligated Indemnifying Party in writing of such claim or demand and the amount or the estimated amount thereof to indemnify the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the "Claim Notice"). The Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the shall not be foreclosed by any failure to so notify shall not relieve provide timely notice of the Responsible existence of a third party claim or demand to the Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially incurs any out-of-pocket expense as a result of such delay or otherwise has been prejudiced therebyas a result of such delay. The Responsible Indemnifying Party shall have 15 fifteen days after from the receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a) whether or not the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such notice claim or demand, and (b) whether or not it desires to assume -133- defend the conduct Indemnified Party against such claim or demand. All costs and controlexpenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, through counsel and shall be paid by, the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to select legal counsel, reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of to represent and defend the settlement Indemnified Party and to otherwise control the proceedings relating to such claim or defense thereof, and the demand. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its counsel in defending any claims or demands, including, without limitation, making available to the Indemnifying Party all information reasonably available to the Indemnified Party relating to such claim or demand, and shall not take any action which is reasonably likely to be detrimental to such defense. In addition, the Indemnified Party and the Indemnifying Party shall render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim or demand. The party in charge of the defense shall keep the other party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If any Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense provided, the Indemnifying Party shall pay the attorneys' fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by any such Indemnifying Party in connection therewith; providedwith the defense of such third party claim, that (ii) the Responsible Indemnifying Party -134- shall permit not have employed counsel reasonably satisfactory to the Indemnified Party to participate in have charge of such settlement third party claim, or defense through counsel chosen by such (iii) the Indemnified Party, provided, 's counsel shall have advised the Indemnified Party in writing with a copy to the Indemnifying Party that there is conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel. In the event that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as Indemnifying Party does not elect to defend the Responsible Party is reasonably contesting any such claim in good faithclaim, the Indemnified Party shall not pay settle a claim or settle any such claim. Notwithstanding demand without the foregoing, consent of the Indemnified Indemnifying Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, (which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreementunreasonably be withheld). The Responsible Indemnifying Party shall not, except with without the prior written consent of the Indemnified Party, enter into consent to the entry of a judgment, settle, compromise or offer to settle or compromise any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all or demand or admit or acknowledge any liability (i) on a basis which would result in the imposition of a consent order, injunction, decree or equitable remedy which would restrict the future activity or conduct of the Indemnified Parties Party or any Subsidiary or Affiliate thereof without the written consent of an unconditional the Indemnified Party and (ii) without obtaining (a) a release from all liability of the Indemnified Party with respect to such claim or consent to entry demand and (b) the dismissal with prejudice of any judgmentlitigation or other proceeding with respect to such claim or demand, in each case for the benefit of and in form and substance reasonably satisfactory to the Indemnified Party. If the Indemnifying Party elects not to defend the Indemnified Party against a claim or demand for which the Indemnifying Party would be liable, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if the same is to be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party will give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party shall use commercially reasonable efforts in the defense of all such claims and demands.

Appears in 1 contract

Samples: Stock Purchase Agreement (Pilgrims Pride Corp)

Third Party Claims. (a) If a Promptly after the receipt by any party hereto of notice of any claim, action, suit or proceeding by any person who is not a third party to this Agreement (collectively, an "Action") which is subject to indemnification hereunder, such party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “the "Indemnified Party") shall give reasonable written notice to the party from whom indemnification is claimed (the "Indemnifying Party"), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such . The Indemnified Party shall promptly notify be entitled, at the party obligated sole expense and liability of the Indemnifying Party, to indemnify exercise full control of the defense, compromise or settlement of any such Indemnified Party (such notified partyAction unless the Indemnifying Party, within a reasonable time after the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt giving of such notice by the Indemnified Party, shall: (i) admit in writing to assume the conduct and controlIndemnified Party, through counsel reasonably acceptable the Indemnifying Party's liability to the Indemnified Party at for such Action under the expense terms of this Section 5, (ii) notify the Indemnified Party in writing of the Responsible Indemnifying Party, of 's intention to assume the settlement or defense thereof, and (iii) retain legal counsel reasonably satisfactory to the Indemnified Party to conduct the defense of such Action. The Indemnified Party and the Indemnifying Party shall cooperate with the party assuming the defense, compromise or settlement of any such Action in accordance herewith in any manner that such party reasonably may request. If the Indemnifying Party so assumes the defense of any such Action, the Indemnified Party shall cooperate with it in connection therewith; provided, that have the Responsible Party shall permit the Indemnified Party right to employ separate counsel and to participate in such (but not control) the defense, compromise, or settlement or defense through counsel chosen by such Indemnified Partythereof, provided, that but the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, expense of the Indemnified Party shall not unless (i) the Indemnifying Party has agreed to pay such fees and expense, (ii) any relief other than the payment of money damages is sought against the Indemnified Party or settle any such claim. Notwithstanding the foregoing, (iii) the Indemnified Party shall have been advised by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the right to pay or settle Indemnifying Party, and in any such claim, provided that in case the fees and expenses of such event it separate counsel shall waive any right to indemnity therefor be borne by the Responsible Indemnifying Party. No Indemnifying Party shall settle or from compromise any such Action in which any relief other than the Escrow Account, as the case may be, for such claim payment of money damages is sought against any Indemnified Party unless the Responsible Indemnified Party consents in writing to such compromise or settlement. No Indemnified Party shall settle or compromise any such Action for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, unless the Indemnifying Party shall have consented to such payment or settlementfailed, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s reasonable notice of a claim of indemnity hereunder that it elects thereof, to undertake control of such Action in the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to manner provided above in this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentSection 5.

Appears in 1 contract

Samples: Asset Purchase Agreement (Rocky Mountain Internet Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “With respect to any Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 days after receipt of such notice the right, at its expense, to participate in or assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense control of the Responsible Partynegotiation, of the settlement or defense thereof, and of the Indemnified Claim. If the Indemnifying Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party elects to participate in assume such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoingcontrol, the Indemnified Party shall have the right to pay participate in, but not control, the negotiation, settlement or settle any defense of such claimThird Party Claim and to retain counsel to act on its behalf at its sole cost and expense, provided provided, that in such event it shall waive any right if the same counsel cannot represent both the Indemnifying Party and the Indemnified Party due to indemnity therefor by actual or potential conflict of interest that cannot reasonably be waived, then the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented be responsible for paying the reasonable expense of separate counsel to such payment represent the Indemnified Party. The Indemnified Party shall not settle a claim or settlementdemand for which it seeks or may seek to be indemnified by any Indemnifying Party without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheldwithheld or delayed. If the Responsible Indemnifying Party, having elected to assume control of such defense, thereafter fails to defend the Third Party does not notify Claim within a reasonable time, the Indemnified Party within 15 days after shall be entitled to assume control of such defense, subject to the receipt right of the Indemnifying Party at any time to re-assume control of the defense, and the amount of any such Third Party Claim (so long as it is a claim or demand in respect of which indemnification is available hereunder) or, if the same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder. The Indemnifying Party shall not settle any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement includes an unconditional release of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Asset Purchase Agreement (Amis Holdings Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding In the case of any claim asserted by a third party (a “Third Party Claim”) is made against any person or entity a Party entitled to indemnification pursuant to Section 8.2 hereof under this Agreement (an the “Indemnified Party”), and if notice shall be given by the Indemnified Party to the Party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party intends has actual knowledge of any claim as to seek which indemnity with respect thereto under this Article VIII, such Indemnified may be sought. If the Indemnifying Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such provides a written notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense within fifteen (15) days after its receipt of the Responsible Party, notice of the settlement or defense thereof, such claim that it will indemnify and hold the Indemnified Parties harmless from all Losses related to such Third Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithClaim, the Indemnified Party shall not pay or settle any such claim. Notwithstanding permit the foregoing, the Indemnified Indemnifying Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, (at the expense of such Indemnifying Party) to assume the Responsible defense of such Third Party Claim or any litigation with a third party resulting therefrom; provided, however, that (i) the counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be subject to the approval of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed), (ii) the Indemnified Party may participate in such defense at such Indemnified Party’s expense, but and (iii) the failure by any Indemnified Party to give notice of a Third Party Claim to the Indemnifying Party as provided herein shall not thereby waive any right relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to indemnity therefor pursuant the extent that, as a result of such failure to this Agreementgive notice, the defense against such claim is materially impaired. The Responsible Party shall not, except Except with the prior written consent of the Indemnified Party, no Indemnifying Party, in the defense of any Third Party Claim, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by the person each claimant or persons asserting plaintiff to such claim to all Indemnified Parties Party of an unconditional a general release from any and all liability with respect to such Third Party Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume (or, if applicable, to maintain) control of the defense against a Third Party Claim if (1) the claim for indemnification relates to or arises in connection with any criminal or quasi criminal proceeding, action, indictment, allegation or investigation; (2) the claim seeks an injunction, specific performance or any other equitable or non-monetary relief against the Indemnified Party; (3) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (4) the Indemnifying Party fails to vigorously prosecute or defend such claim; or (5) Liability for claims under Section 8.1 are and continue to be for amounts in the aggregate in excess of the Cap. If the Indemnifying Party does not accept the defense of a Third Party Claim within fifteen (15) days after receipt of the written notice thereof from the Indemnified Party described above, the Indemnified Party shall have the full right to defend against any such claim or consent to entry demand. In any event, the Indemnifying Party and the Indemnified Party shall reasonably cooperate in the defense of any judgmentThird Party Claim and the records of each shall be reasonably available to the other with respect to such defense.

Appears in 1 contract

Samples: Asset Purchase Agreement (Magicjack Vocaltec LTD)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice the Claim Notice with respect to a Third-Party Claim to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, control of the settlement or defense thereofof such the Third-Party Claim, through counsel of its own choosing (but reasonably satisfactory to the Indemnified Party) and at the Indemnifying Party?s own expense, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to may participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that Party and the fees and expenses of such counsel shall be borne by such Indemnified Party with no right to indemnification therefor unless (i) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (ii) the Indemnified Party reasonably concludes (based on the advice of counsel) that there exists a conflict of interest between the interests of the Indemnified Party and the Indemnifying Party, or (iii) the Indemnifying Party has after a reasonable time failed to employ counsel to assume or to continue to maintain such defense, in each of which events the Indemnified Party may retain counsel which shall be reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay the reasonable fees and expenses of such counsel for the Indemnified Party (but in no event shall the Indemnifying Party be obligated to pay fees and expenses of more than one firm for all Indemnified Parties). So Except as otherwise provided in this Section 9.2(c), so long as the Responsible Indemnifying Party is reasonably contesting any such claim Third-Party Claim in good faith, the Indemnifying Party shall have the exclusive right to conduct and control the defense of the Third-Party Claim and the Indemnified Party shall not pay or settle any such claim. Notwithstanding Third-Party Claim without the foregoing, consent of the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldIndemnifying Party. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of 's Claim Notice with respect to a claim of indemnity hereunder Third-Party Claim that it elects to undertake the defense thereof; thereof (or does not fulfill its commitment to undertake such defense), the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, Third-Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the written consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties Third-Party Claim of an unconditional release from all liability with respect to such claim Third-Party Claim to all Indemnified Parties (i.e., Assignor Indemnified Parties or consent to entry of any judgmentAssignee Indemnified Parties, as the case may be).

Appears in 1 contract

Samples: Asset Purchase Agreement (Scientific Industries Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)of ---------------------- the indemnified parties, and if such Indemnified Party indemnified party intends to seek indemnity with respect thereto under this Article VIII5, such Indemnified Party indemnified party shall promptly notify Purchaser or the party obligated to indemnify such Indemnified Party (such notified partySeller, as the “Responsible Party”) case may be, of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible Party indemnifying party shall have 15 thirty (30) days after receipt of such the above-mentioned notice to assume the undertake, conduct and control, through counsel reasonably acceptable of its own choosing (subject to the Indemnified Party at the expense consent of the Responsible Partyindemnified party, of such consent not to be unreasonably withheld) and at its expense, the settlement or defense thereoftherefore, and the Indemnified Party indemnified party shall cooperate with it in connection therewith; providedprovided that: (i) the indemnifying party shall not thereby permit to exist any lien, that encumbrance or other adverse charge upon any asset of any indemnified party, (ii) the Responsible Party indemnifying party shall permit the Indemnified Party indemnified party to participate in such settlement or defense through counsel chosen by such Indemnified Partythe indemnified party, provided, provided that the fees and expenses of such counsel shall be borne by the indemnified party, and (iii) the indemnifying party shall agree promptly to reimburse the indemnified party for the full amount of any loss resulting from such Indemnified Partyclaim and all related expense incurred by the indemnified party within the limits of this Article 5. So long as the Responsible Party indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party indemnified party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to pay or settle any such claim, provided that in such event it the indemnified party shall waive any right to indemnity therefor therefore by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldindemnifying party. If the Responsible Party indemnifying party does not notify the Indemnified Party indemnified party within 15 thirty (30) days after the receipt of the Indemnified Party’s indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party indemnified party shall have the right to contest, settle or compromise the claim, claim in the exercise of its exclusive discretion at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreementindemnifying party. The Responsible Party shall notindemnified party shall, except with however, notify the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry indemnifying party of any judgmentcompromise or settlement of any such claim. Nothing contained in this Section 5.3 shall be construed as a limitation on the right of any party to indemnification under Sections 5.1, 5.2 or 5.4 herein.

Appears in 1 contract

Samples: Asset Sale Agreement (Vital Health Technologies Inc)

Third Party Claims. If any Person who is not a Party (aor an Affiliate thereof) If a claim, action, suit or proceeding by a third party notifies any Indemnified Party with respect to any matter (a “Third Party Claim”) is made against any person or entity entitled that could be reasonably expected to indemnification pursuant give rise to Section 8.2 hereof (an “Indemnified Party”), and if a claim by such Indemnified Party intends to seek indemnity with respect thereto for indemnification against any Indemnifying Party under this Article VIIIAgreement, such then the Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claimsby delivering an Indemnification Certificate thereto; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Responsible Indemnifying Party of its obligations hereunder, hereunder except to the extent such failure shall have materially prejudiced the Indemnifying Party (except that the Responsible Indemnifying Party will not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such Notice), it being understood and agreed that the failure of the Indemnified Party to so notify the Indemnifying Party prior to settling a Third Party Claim (whether by paying a claim or executing a binding settlement agreement with respect thereto) or the entry of a judgment or issuance of an award with respect to a Third Party Claim shall constitute actual prejudice to the Indemnifying Party’s ability to defend against such Third Party Claim. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received or transmitted by the Indemnified Party relating to the Third Party Claim. The Indemnifying Party will have the right to participate in or assume the defense of any Third Party Claim with counsel of the Indemnifying Party’s choice, reasonably satisfactory to the Indemnified Party, so long as (A) the Indemnifying Party notifies the Indemnified Party, within ten (10) days after the Indemnified Party has given Notice of the Third Party Claim to the Indemnifying Party (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) that the Indemnifying Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt assuming the defense of such notice to assume Third Party Claim and will indemnify the conduct and controlIndemnified Party against such Third Party Claim in accordance with this Article 8, through counsel (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party has and will at all times continue to have the expense financial resources to defend the Third Party Claim (including any increased losses caused by such defense) and fulfill its indemnification obligations hereunder with respect thereto, (C) the Indemnifying Party conducts the defense of the Responsible PartyThird Party Claim actively and diligently and at its own costs and expense, and (D) the Third Party Claim does not involve injunctive relief, specific performance or other similar equitable relief, any Claim in respect of Taxes, any Governmental Authority or any potential damage to the goodwill or reputation of SEARHC, the goodwill or reputation of the settlement City, or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified PartyBusiness. So long as the Responsible conditions set forth in Section 8.3(b)(ii) are and remain satisfied, then (A) the Indemnifying Party is reasonably contesting any such claim may conduct the defense of the Third Party Claim in good faithaccordance with Section 8.3(b)(ii), (B) the Indemnified Party shall not pay or settle any may retain separate co-counsel at its sole cost and expense to participate in the defense of the Third Party Claim, it being understood that the Indemnifying Party will control such claim. Notwithstanding defense subject to the foregoinglimitations set out in this Section 8.3(b), (C) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed), (D) the Indemnifying Party will not consent to the entry of any judgment with respect to the Third Party Claim, or enter into any settlement, which either imposes an injunction or other equitable relief upon the Indemnified Party or does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, and (E) the Indemnified Party shall, at the Indemnifying Party’s request and at the Indemnifying Party’s expense, cooperate in the defense of the matter. In the case of indemnification claims against the City for which SEARHC intends to pursue recovery against the Escrow Accounts, SEARHC will also deliver a copy of any Notice or Indemnification Certificate provided under this Section 8.3 to the Escrow Agent. In no event shall an Indemnifying Party be liable to an Indemnified Party for any special or punitive damages, except with respect to any special or punitive damages arising from a Third Party Claim that such Indemnified Party is required to pay to any Person who is not a Party (or an Affiliate thereof). For purposes of determining the amount of any Losses that are the subject matter of a Claim for indemnification hereunder, each representation, warranty, and covenant in this Agreement and the Closing Documents, and each certificate or document delivered pursuant hereto, shall be read without regard and without giving effect to the term(s) “material” or “Material Adverse Change” or similar qualifiers as if such words and surrounding related words (e.g. “reasonably be expected to,” “could have” and similar restrictions and qualifiers) were deleted from such representation, warranty or covenant; provided, however, that the foregoing clause shall not apply to the Fundamental Representations or the term “Material Contracts.” With respect to any claim under this Article 8, after (i) any final decision, judgment, or award shall have been rendered by a Governmental Authority of competent jurisdiction and the expiration of the time in which to appeal therefrom, (ii) a settlement shall have been consummated with respect to a Third Party Claim, (iii) SEARHC and the City have arrived at a mutually binding Memorandum of Agreement, or (iv) an Indemnifying Party fails to object within the time period provided: (A) if the Indemnified Party is the City, the City will forward to SEARHC notice of any sums due and owing by it in accordance with this Agreement with respect to such matter and SEARHC will pay all of such remaining sums so due and owing to the City in accordance with this Article 8 and (B) if the Indemnified Party is SEARHC, SEARHC will forward to the City notice of any sums due and owing by it in accordance with this Agreement with respect to the matter and (w) if applicable, SEARHC and the City shall jointly instruct the Escrow Agent to pay such remaining sums so due and owing (to the extent that funds remain in the Escrow Accounts), (x) if applicable, SEARHC will have the right to offset amounts otherwise owing to the City under Section 1.6(c)(ii) in satisfaction of such SEARHC Indemnifiable Amounts, (y) the City will pay all of such remaining sums so due and owing to SEARHC in accordance with this Article 8, or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by (z) the Responsible Party or from the Escrow Account, as the case SEARHC Indemnifiable Amounts may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt satisfied through a combination of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake methods described in subsections (w) through (y). Following the defense thereof; Closing, the Indemnified Party shall have the right to contestsole and exclusive remedy for any and all Claims arising under, settle out of, or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant related to this Agreement, or the sale and purchase of the Acquired Assets and the assumption of the Assumed Liabilities, shall be the rights of indemnification set forth in this Article 8 and the Escrow Agreement and rights to seek and obtain specific performance or injunctive relief under Section 9.11 for breach of any covenant under this Agreement, and no Person will have any other entitlement, remedy or recourse, whether in contract, tort or otherwise, it being agreed that all of such other remedies, entitlements and recourse are expressly waived and released by the Parties hereto to the fullest extent permitted by law; provided, that nothing in this Section 8.4(g) shall limit a Party’s rights in the case of fraud or willful misconduct. The Responsible Party shall notMISCELLANEOUS Amendments . This Agreement may not be amended, except with modified or supplemented without the written consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmenthereto.

Appears in 1 contract

Samples: Asset Purchase Agreement

Third Party Claims. Within ten (a10) If a claim, action, suit or proceeding days after the receipt by any party entitled to indemnification (the "Indemnified Party") pursuant to this Section 8 of notice of the commencement of any action against such Indemnified Party by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIparty, such Indemnified Party shall promptly notify the shall, if a claim with respect thereto is to be made against any party obligated to indemnify provide indemnification (the "Indemnifying Party") pursuant to this Section 8, give such Indemnifying Party written notice thereof (in accordance with Section 9.10) in reasonable detail in light of the circumstances then known to such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, however, that the failure to so notify give such notice shall not relieve the Responsible any Indemnifying Party of its obligations hereunderfrom any obligation hereunder except where, except and then solely to the extent that the Responsible Party is that, such failure actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt prejudices the rights of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Indemnifying Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Such Indemnifying Party shall have the right to pay or settle any defend such claim, at such Indemnifying Party's expense and with counsel of its choice reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party conducts the defense of such claim actively and diligently. If the Indemnifying Party assumes the defense of such claim, the Indemnified Party agrees to reasonably cooperate in such event it shall waive defense so long as the Indemnified Party is not materially prejudiced thereby and on the condition that the Indemnifying Party reimburse the Indemnified Party for any right to indemnity therefor reasonable expenses incurred by the Responsible Indemnified Party or from the Escrow Account, pursuant to such cooperation. So long as the case may be, for Indemnifying Party is conducting the defense of such claim unless actively and diligently, the Responsible Indemnified Party shall have consented may retain separate co-counsel at its sole cost and expense and may participate in the defense of such claim, and neither any Indemnifying Party nor any Indemnified Party will consent to the entry of any judgment or enter into any settlement with respect to such payment or settlementclaim without the prior written consent of the other, which consent will not be unreasonably withheldwithheld or delayed. If In the Responsible Party does not notify event that: (a) the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.Indemnifying

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Netlojix Communications Inc)

Third Party Claims. (a) If a claim, action, suit any claim or proceeding demand in respect of which an Indemnified Party might seek indemnity under this ARTICLE 8 is asserted against such Indemnified Party by a third party Person other than a Seller Indemnified Party or a Buyer Indemnified Party (as applicable) (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding give written notice and the foregoingdetails thereof including copies of all relevant pleadings, documents and information (collectively a “Third Party Claim Notice”) to the Indemnifying Party within a period of twenty (20) days following the assertion of the Third Party Claim against the Indemnified Party shall have (the right “Third Party Claim Notice Period”). If the Indemnified Party fails to pay or settle any such claimprovide the Third Party Claim Notice within the Third Party Claim Notice Period, provided that in such event it shall waive any right to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldobligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent (and only to the extent) that the Indemnifying Party’s ability to defend has been materially prejudiced by such failure of the Indemnified Party. If the Responsible The Indemnifying Party does not will notify the Indemnified Party within 15 a period of ten (10) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects Third Party Claim Notice by the Indemnifying Party (the "Third Party Claim Response Period”) whether or not the Indemnifying Party desires, at its sole cost and expense, to undertake the defense thereof; defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party desires to defend the Indemnified Party against the Third Party Claim, then the Indemnifying Party at its sole cost and expense shall have defend, with counsel reasonably satisfactory to the right Indemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted to contest, settle a final conclusion or compromise the claim, will be settled at the expense discretion of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except (with the consent of the Indemnified Party, enter into which shall not be unreasonably withheld and which shall be deemed to be provided if such settlement provides a release to the Indemnified Party without the payment of any settlement that does not include as an unconditional term thereof the giving amount by the person Indemnified Party). The Indemnified Party will cooperate in such defense at the sole cost and expense of the Indemnifying Party. The Indemnified Party may, at its sole cost and expense, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the last sentence of the preceding paragraph, file any pleadings or persons asserting such claim take any other action that the Indemnified Party reasonably believes to all be necessary or appropriate to protect its interests. The Indemnified Parties of an unconditional release from all liability with respect to such claim Party, at its expense, may participate in, but not control, any defense or consent to entry settlement of any judgmentThird Party Claim conducted by the Indemnifying Party pursuant to this Section 8.3(b). Notwithstanding the foregoing, if the named parties to any proceeding include both the Indemnified Party and the Indemnifying Party and, in the reasonable opinion of counsel to the Indemnified Party, representation of both parties by the same counsel would be in conflict or otherwise inappropriate due to actual or potential differing interests between them, then the Indemnified Party shall be entitled to retain separate counsel for the Indemnified Party, at the expense of the Indemnifying Party (provided that the costs and expenses of such separate counsel are reasonable). If the Indemnifying Party fails to notify the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party desires to defend the Third Party Claim or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, then the Indemnified Party shall defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which shall not be unreasonably withheld). The Indemnifying Party may, at its sole cost and expense, cooperate in such defense.

Appears in 1 contract

Samples: Asset Purchase Agreement (Medcath Corp)

Third Party Claims. (a) If a any claim, action, suit assertion or proceeding by or in respect of a third party (a “Third Party Claim”) is made against an Indemnified Party or any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)event in respect of a third party occurs, and if such the Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIor to apply any damage or liability arising therefrom to the U.S. Dollar amounts referred to herein, such the Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; providedclaim in writing, provided that the failure by the Indemnified Party to so notify give such notice shall not relieve the Responsible Indemnifying Party of from its indemnification obligations hereunder, except if and to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct undertake, conduct, and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, however, that (a) the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such the Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party, (b) the Indemnifying Party shall promptly reimburse the Indemnified Party for the full amount of any liability resulting from such claim and all related and reasonable expenses (other than the fees and expenses of counsel as aforesaid) incurred by the Indemnified Party within the limits of this Article and subject to the U.S. Dollar amounts referred to herein, (c) the Indemnified Party shall not, without the prior written consent of the Indemnifying Party, settle or compromise any claim or consent to the entry of any judgment that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such claim, and (d) nothing herein shall require any Indemnified Party to consent to the entry of any order, injunction, or consent decree materially affecting its ability to conduct its business operations after the date thereof. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim; provided, provided however, that in such event it shall waive any right to indemnity therefor by the Responsible Party Indemnifying Party. If representation of the Indemnified Party, on the one hand, and the Indemnifying Party, on the other, by the same counsel would otherwise be inappropriate due to actual or from potential differing interests between them, then the Escrow Account, as Indemnified Parties shall be entitled to engage separate legal counsel to participate in the case may be, for defense of such claim unless at the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldsole expense of Indemnifying Party. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s written notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle settle, or compromise the claim, claim in the exercise of its reasonable judgment at the expense of the Responsible Indemnifying Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Agreement for Purchase of LLC Interest (JUVA LIFE INC./Canada)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)either of the indemnified parties, and if such Indemnified Party either of the indemnified parties intends to seek indemnity with respect thereto under this Article VIIISection 10.1, such Indemnified Party indemnified party shall promptly notify Buyer or Seller, as the party obligated to indemnify such Indemnified Party (such notified partycase may be, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible Party indemnifying party shall have 15 thirty (30) days after receipt of such the above-mentioned notice to assume the undertake, conduct and control, through counsel reasonably acceptable of its own choosing (subject to the Indemnified Party at the expense consent of the Responsible Partyindemnified party, of such consent not to be unreasonably withheld or delayed) and at its expense, the settlement or defense thereoftherefor, and the Indemnified Party indemnified party shall cooperate with it in connection therewith; providedprovided that: (i) the indemnifying party shall not thereby permit to exist any lien, that encumbrance or other adverse charge upon any asset of any indemnified party (ii) the Responsible Party indemnifying party shall permit the Indemnified Party indemnified party to participate in such settlement or defense through counsel chosen by such Indemnified Partythe indemnified party, provided, provided that the fees and expenses of such counsel shall be borne by the indemnified party and (iii) the indemnifying party shall agree promptly to reimburse the indemnified party for the full amount of any loss resulting from such Indemnified Partyclaim and all related expenses incurred by the indemnified party within the limits of this Section 10.1. So long as the Responsible Party indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party indemnified party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to pay or settle any such claim, provided that in such event it they shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldindemnifying party. If the Responsible Party indemnifying party does not notify the Indemnified Party indemnified party within 15 thirty days after the receipt of the Indemnified Party’s indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party indemnified party shall have the right to contest, settle or compromise the claim, claim in the exercise of its exclusive discretion at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentindemnifying party.

Appears in 1 contract

Samples: Hotel Purchase Agreement (RFS Hotel Investors Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified indemnified Party”), and if such Indemnified indemnified Party intends to seek indemnity with respect thereto under this Article VIIIhereunder, such Indemnified the indemnified Party shall promptly (and in any case within 30 days of such claim being made and within the period provided in Section 6.5, if applicable) notify the party obligated to indemnify such Indemnified indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible indemnifying Party shall have 15 60 days after receipt of such notice to assume the to, without reserving any rights, undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified indemnified Party shall cooperate with it in connection therewith; providedprovided that (a) the indemnified Party may take any action necessary to preserve any rights or defenses in connection with a claim prior to the indemnifying Party undertaking the defense thereof; (b) after undertaking the settlement or defense of a claim, that the Responsible indemnifying Party shall permit the Indemnified indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified the indemnified Party, provided, that provided the fees and expenses of such counsel shall be borne by the indemnified Party; (c) the indemnifying Party shall promptly reimburse the indemnified Party for the full amount of any Loss resulting from such Indemnified Partyclaim and all related expenses incurred by the indemnified Party within the limits of this Article 6, including any expenses and attorney fees relating to the defense of the claim prior to the indemnifying Party undertaking the settlement or defense thereof (except for expenses contemplated by clause (b) preceding); and (d) that any such settlement or defense by the Sellers shall be subject to approval by Buyer, which approval shall not be unreasonably withheld. So long as the Responsible indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified indemnified Party shall not pay or settle any such claim. Notwithstanding any of the foregoing, the Indemnified indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from indemnifying Party. Subject to the Escrow Accountlimitations set forth in Section 6.5, as if the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible indemnifying Party does not notify the Indemnified indemnified Party within 15 60 days after the receipt of the Indemnified indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.hereunder

Appears in 1 contract

Samples: Stock Purchase Agreement (Data Documents Inc)

Third Party Claims. (a) If In order for it to assert a claimclaim for indemnification under this Article 10, action, suit as promptly as reasonably possible after the commencement of any action or proceeding by against the Company, any of the Company’s Subsidiaries or any party hereto which could give rise to a third claim for indemnification under Section 10.1 (other than a Tax Contest, as to which the provisions of Section 9.2 rather than this Section 10.3 shall apply), the party seeking indemnification (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an the “Indemnified Party”), and if such Indemnified Party intends ) shall give notice to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party from whom indemnification is sought (such notified party, the “Responsible Indemnifying Party”) of such claims; provided, that the failure pursuant to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebySection 10.2. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithThereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the action or proceeding. The Indemnifying Party shall then be entitled to participate in such action or proceeding and, to the extent that it shall wish, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified Party and, after notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not pay be liable to such Indemnified Party under Section 10.1 for any fees of other counsel or settle any other expenses, in each case subsequently incurred by such claimIndemnified Party in connection with the defense thereof. If an Indemnifying Party assumes the defense of such an action, (a) no compromise or settlement thereof may be effected by the Indemnifying Party without the Indemnified Party’s consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person by, and no effect on any other claims that may be made against, the Indemnified Party and (ii) the sole relief provided is monetary damages that are paid by the Indemnifying Party and (b) the Indemnifying Party shall have no liability with respect to any compromise or settlement thereof effected by the Indemnified Party without its consent (which shall not be unreasonably withheld). If the Indemnifying Party chooses to defend any action or proceeding, all the parties hereto shall cooperate in the defense or prosecution of such action or proceeding. Such cooperation shall include the retention by the Indemnified Party and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of non-confidential records and information that are reasonably relevant to such action and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnified Party gives the Indemnifying Party notice of the commencement of any action and the Indemnifying Party does not, within 30 days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense thereof, the Indemnifying Party shall be bound by any determination made in such action or any compromise or settlement thereof effected by the Indemnified Party. Notwithstanding the foregoing, if an Indemnified Party provides the Indemnifying Party with evidence that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, such Indemnified Party may, by written notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have the right no liability with respect to pay a judgment entered in any action so defended, or settle any such claim, provided that in such event it a compromise or settlement thereof entered into without its consent (which shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment).

Appears in 1 contract

Samples: Stock Purchase Agreement (Fleetcor Technologies Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity Person entitled to indemnification pursuant to Section 8.2 9.2 hereof (an "Indemnified Party"), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIIIX, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible "Indemnifying Party") of such claims; provided, that the failure to so notify shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 days 20 Business Days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Indemnifying Party, of the settlement or defense thereof, and ; provided that: (i) the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, ; provided that the fees and expenses of such counsel shall be borne by such Indemnified Party; and (ii) the Indemnifying Party shall promptly assume and hold such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, ; provided that in such event it shall waive any right to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 days 20 Business Days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Transaction Agreement (Asarco Inc)

Third Party Claims. (a) If a claim, action, suit claim or proceeding demand is made against an Indemnitee by any Person who is not a third party to this Agreement (a "Third Party Claim") as to which such Indemnitee is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and if in reasonable detail, of the Third Party Claim promptly (and in any event within 10 Business Days) after receipt by such Indemnified Indemnitee of written notice of the Third Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claimsClaim; provided, however, that the failure to so notify give such notification shall not relieve affect the Responsible Party of its obligations hereunder, indemnification provided hereunder except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 days after receipt been actually prejudiced as a result of such notice failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 10 business days) 52 47 after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the conduct and controldefense thereof with counsel selected by the Indemnifying Party, through provided that such counsel is not reasonably acceptable objected to by the Indemnitee. 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 at Indemnitee for legal or other expenses subsequently incurred by the expense of Indemnitee in connection with the Responsible Party, of the settlement or defense thereof. If the Indemnifying Party assumes such defense, and the Indemnified Party Indemnitee shall cooperate with it in connection therewith; provided, that have the Responsible Party shall permit the Indemnified Party right to participate in such settlement or the defense through thereof and to employ counsel, at its own expense, separate from the counsel chosen employed by such Indemnified the Indemnifying Party, provided, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above). If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing responsibility for a Third Party Claim, then in no event shall the Indemnitee admit any liability with respect to, or settle, compromise or discharge, such counsel Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall be borne by have the right to settle, compromise or discharge such Indemnified Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. So long as If the Responsible Indemnifying Party is reasonably contesting acknowledges in writing responsibility for a Third Party Claim, the Indemnitee shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party 53 48 may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such claim in good faithsettlement, compromise or discharge if the Indemnified Indemnitee agrees that the Indemnifying Party's indemnification obligation hereunder with respect to such Third Party Claim shall not pay exceed the difference between (i) the amount that would be required to be paid by or settle any on behalf of the Indemnifying Party in connection with such claimsettlement, compromise or discharge and (ii) the amount actually paid by or on behalf of the Indemnifying Party in connection with the settlement, compromise or discharge of such Third Party Claim. Notwithstanding the foregoing, the Indemnified Indemnifying Party shall have not be entitled to assume the right to pay or settle defense of any such claim, provided that in such event it Third Party Claim (and shall waive any right to indemnity therefor be liable for the fees and expenses of counsel incurred by the Responsible Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Escrow AccountThird Party Claim can be so separated from that for money damages, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented be entitled to such payment or settlement, which consent will not be unreasonably withheld. If assume the Responsible Party does not notify the Indemnified Party within 15 days after the receipt defense of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects portion relating to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentmoney damages.

Appears in 1 contract

Samples: Intercompany Agreement (Infinity Broadcasting Corp /De/)

Third Party Claims. (a) If a claim, action, suit or proceeding Claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII6, such Indemnified Party shall promptly notify the party obligated to indemnify Indemnifying Parties, within 30 days of receiving such Indemnified Third Party (such notified partyClaim, the “Responsible Party”) of such claimsThird Party Claim in writing; provided, that the Table of Contents failure to so notify shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Party is Indemnifying Parties are actually and materially prejudiced therebythereby or otherwise forfeit rights or defenses by reason of such failure. The Responsible Party Indemnifying Parties shall have 15 90 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible PartyIndemnifying Parties, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party Indemnifying Parties shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that that, the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party Indemnifying Parties is reasonably contesting any such claim Third Party Claim in good faith, the Indemnified Party shall not pay or settle any such claimThird Party Claim without the Indemnifying Parties’ prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claimThird Party Claim, provided provided, that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, Indemnifying Parties for such claim Third Party Claim unless the Responsible Indemnifying Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 90 days after the receipt of the Indemnified Party’s written notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall notIn such event, except with the consent of the Indemnified Party, enter into Party may employ counsel to represent or defend the Indemnified Party against any settlement that does not include as an unconditional term thereof such Third Party Claim and the giving by Indemnifying Parties shall pay the person or persons asserting reasonable fees and disbursements of such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentcounsel.

Appears in 1 contract

Samples: Stock Purchase Agreement (VNU International B.V.)

Third Party Claims. Promptly after receipt by any Purchaser Party or Company Party (a) If a claimeach, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”) of notice of any demand, claim, or circumstances which would or might give rise to a claim or the commencement of any Action in respect of which indemnity may be sought pursuant to Section 4.7(a) or Section 4.7(b), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIas applicable, such Indemnified Party shall promptly notify the indemnifying party obligated in writing and the indemnifying party may assume the defense thereof, including the employment of counsel reasonably satisfactory to indemnify such Indemnified Party (such notified partyParty, and shall assume the “Responsible Party”) payment of such claimsall fees and expenses; provided, however, that the failure of any Indemnified Party so to so notify the indemnifying party shall not relieve the Responsible Party indemnifying party of its obligations hereunder, hereunder except to the extent that the Responsible Party indemnifying party is actually and materially and adversely prejudiced therebyby such failure to notify. The Responsible In any such Action, any Indemnified Party shall have 15 days after receipt of such notice the right to assume the conduct and controlretain its own counsel, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that but the fees and expenses of such counsel shall be borne by at the expense of such Indemnified Party. So long as Party unless (i) the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, indemnifying party and the Indemnified Party shall have mutually agreed to the right retention of such counsel, (ii) the indemnifying party shall have failed promptly to pay or settle any assume the defense of such claim, provided that Action and to employ counsel reasonably satisfactory to such Indemnified Party in such event it shall waive any right Action, or (iii) in the reasonable judgment of counsel to indemnity therefor such Indemnified Party, representation of both parties by the Responsible Party same counsel would be inappropriate due to actual or from potential differing interests between them; provided, however, that the Escrow Accountindemnifying party shall not be liable for the fees and expenses of more than one separate firm of attorneys (plus local counsel, as the case may be, if reasonably necessary) at any time for such claim unless the Responsible each group of Affiliated Indemnified Parties. The indemnifying Party shall have consented to such payment or settlementnot be liable for any settlement of any Action effected without its written consent, which consent will shall not be unreasonably withheld, delayed or conditioned. If Without the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the prior written consent of the Indemnified Party, enter into the indemnifying party shall not effect any settlement that does not include as an unconditional term thereof the giving of any pending or threatened Action in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by the person or persons asserting such claim to all Indemnified Parties of Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability with respect to arising out of such claim or consent to entry of any judgmentAction.

Appears in 1 contract

Samples: Securities Purchase Agreement (Central Federal Corp)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) Claim is made against any person Licensor Indemnified Party or entity Licensee Indemnified Party (any, an "Indemnitee") with respect to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Party which is or may be required pursuant to Section 8.2 4.1 hereof to make such indemnification (the "Indemnifying Party") in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 days) after receipt by such Indemnitee 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. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 10 days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an “Indemnified Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall, within 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified the Indemnifying Party shall promptly notify thereafter not be liable to the party obligated to indemnify such Indemnified Party (such notified party, Indemnitee for legal or other expenses subsequently incurred by the “Responsible Party”) of such claimsIndemnitee in connection with the defense thereof; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party such Indemnitee shall have 15 days after receipt the right to employ counsel to represent such Indemnitee if, in such Indemnitee's reasonable judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such notice to assume the conduct and control, through claim which would make representation of both such parties by one counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereofinappropriate, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that event the fees and expenses of such separate counsel shall be borne paid by such Indemnified Indemnifying Party. So long as If the Responsible Indemnifying Party is reasonably contesting any assumes such claim in good faithdefense, the Indemnified Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above). If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided agreements, documents, books, records, files and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party. If the Indemnifying Party acknowledges in writing responsibility under this Section 4.2 for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay or settle any the full amount of the liability in connection with such claimThird Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee. Notwithstanding the foregoing, the Indemnified Indemnifying Party shall have not be entitled to assume the right to pay or settle defense of any such claim, provided that in such event it Third Party Claim (and shall waive any right to indemnity therefor be liable for the fees and expenses of counsel incurred by the Responsible Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Escrow AccountThird Party Claim can be so separated from that for money damages, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented be entitled to such payment or settlement, which consent will not be unreasonably withheld. If assume the Responsible Party does not notify the Indemnified Party within 15 days after the receipt defense of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects portion relating to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentmoney damages.

Appears in 1 contract

Samples: Site Access License Agreement (Miravant Medical Technologies)

Third Party Claims. (a) If a claim, action, suit or proceeding an Indemnified Party shall receive written notice of any Action by a an unaffiliated third party (each, a “Third Party Claim”) is made against any person or entity entitled it which would reasonably be expected to indemnification pursuant give rise to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto a claim for Loss under this Article VIII, within ten (10) days of the receipt of such notice, the Indemnified Party shall promptly notify give the party obligated Indemnifying Party notice of such Third Party Claim; provided, that, the failure to indemnify provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that such failure shall have materially and adversely prejudiced the Indemnifying Party. The Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within twenty (such notified party, 20) days of the “Responsible Party”) receipt of such claimsnotice from the Indemnified Party; provided, that the failure to so notify Indemnifying Party shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice be entitled to assume or continue control of the conduct and controldefense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal Action, through counsel (ii) the Third Party Claim seeks an injunction, specific performance or similar equitable relief against any Indemnified Party, (iii) the Third Party Claim has or would reasonably acceptable be expected to result in Losses in excess of the amounts available for indemnification pursuant to Section 8.04, or (iv) the Indemnifying Party has failed or is failing to defend in good faith the Third Party Claim. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party may participate in such defense at its own expense; provided, that the fees, costs and expenses of such counsel shall be at the expense of the Responsible PartyIndemnifying Party if the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded based on advice from legal counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential conflict of interest between them; provided, further, that the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Third Party Claim. If the Indemnifying Party assumes the defense of a Third Party Claim, the settlement or defense thereof, Indemnifying Party shall defend such Third Party Claim in good faith and the Indemnified Party shall cooperate with it the Indemnifying Party in connection therewith; providedsuch defense and make available to the Indemnifying Party, that at the Responsible Party shall permit Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of a Third Party Claim, it shall not settle the Third Party Claim without the Indemnified Party’s written consent unless (A) the settlement does not entail any admission of liability on the part of any Indemnified Party, and (B) the settlement includes an unconditional release of each Purchaser Indemnified Party or Seller Indemnified Party, as applicable, reasonably satisfactory to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of from all Losses with respect to such counsel shall be borne by such Indemnified PartyThird Party Claim. So long as the Responsible Party is reasonably contesting any such claim in good faith, the The Indemnified Party shall not pay or settle any such claim. Notwithstanding Third Party Claim if the foregoing, the Indemnified Indemnifying Party shall have any obligation as a result of such settlement (whether monetary or otherwise) unless such settlement is consented to in writing by the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The provisions of this Section 8.05 shall be subject to, and overridden by where inconsistent with, the provisions of Section 6.01 and Section 6.02. For the avoidance of doubt, the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; of such Third Party Claim shall be exercised by such Sellers as a group through the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentSeller Representative.

Appears in 1 contract

Samples: Securities Purchase Agreement (Virtus Investment Partners, Inc.)

Third Party Claims. (a) If In the event of a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity , the Indemnifying Party shall be entitled to indemnification pursuant assume and control the defense of such Third Party Claim and to Section 8.2 hereof (an “Indemnified appoint counsel of the Indemnifying Party”), and if such 's choice at the expense of the Indemnifying Party to represent the Indemnified Party intends to seek indemnity and any others the Indemnifying Party may reasonably designate in connection with respect thereto under this Article VIII, such Third Party Claim (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by any Indemnified Party shall promptly notify the party obligated to indemnify except as set forth below); provided that such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party counsel is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement which approval shall not be unreasonably withheld or defense thereof, and the delayed. Notwithstanding an Indemnifying Party's election to appoint separate counsel to represent an Indemnified Party shall cooperate with it in connection therewith; providedwith a Third Party Claim, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the an Indemnified Party shall have the right to pay employ one separate counsel (plus one local counsel, if necessary), and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such one separate counsel (plus one local counsel, if necessary) if (i) there exists a conflict of interest (including the availability of one or settle any such claimmore legal defenses to the Indemnified Party which are not available to the Indemnifying Party) that would make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after and such counsel shall contest such Third Party Claim in good faith or (ii) if the receipt of Claim seeks injunctive relief which, if granted could materially and adversely affect the Indemnified Party or its Affiliates. The Indemnified Party shall cooperate with the Indemnifying Party and its counsel in such defense and make available to the Indemnifying Party all witnesses, records, materials, and information in the Indemnified Party’s notice of a claim of indemnity hereunder that it elects 's possession or under the Indemnified Party's control relating thereto as may be reasonably requested by the Indemnifying Party. In the event the Indemnifying Party fails to undertake assume the defense thereof; of such Third Party Claim within thirty (30) days after receipt of notice thereof in accordance with the terms hereof, (i) the Indemnified Party against which such Third Party Claim has been asserted shall have the right to contestundertake the defense, settle compromise or compromise the claimsettlement of such Third Party Claim on behalf of, at the expense of and for the Responsible Partyaccount and risk of the Indemnifying Party using one counsel, but shall not thereby waive any right plus one local counsel, if necessary, and (ii) the Indemnifying Party agrees to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except cooperate with the consent of Indemnified Party in such defense and make available to the Indemnified Party, enter into any settlement that does not include all witnesses, records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as an unconditional term thereof the giving may be reasonably requested by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentParty.

Appears in 1 contract

Samples: Asset Purchase Agreement (Libbey Inc)

Third Party Claims. Parent agrees to notify the Stockholders Representative in writing of any Claims asserted by third parties that, in the opinion of Parent, are reasonably likely to give rise to indemnification of any member of the Parent Group hereunder (“Third-Party Claims”). In the event of any Third Party Claim, the Indemnifying Party shall be entitled: (a) If a claimto participate in such action and (b) to elect, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such written notice to assume the conduct and control, through counsel reasonably acceptable delivered to the Indemnified Party at within 30 days after the expense Indemnifying Party’s receipt of notice of the Responsible Third Party Claim, to defend, compromise or settle such action, with counsel reasonably satisfactory to the Indemnified Party, of the settlement or defense thereof, and the . The Indemnified Party shall cooperate with it in connection therewith; providedrespect to any such participation, that the Responsible Party shall permit the Indemnified Party to participate in such defense, settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Partycompromise. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the The Indemnified Party shall have the right to pay or settle employ its own counsel in any such claimcase, provided that in such event it but the fees and expenses of the Indemnified Party’s counsel shall waive any right to indemnity therefor by be at the Responsible sole expense of the Indemnified Party or from unless: (i) the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented authorized in writing employment of such counsel at the expense of the Indemnifying Party; (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to defend such action within 30 days after the Indemnifying Party received notice of the Asserted Liability; (iii) the Indemnified Party shall have reasonably concluded, based upon advice of counsel, that there are defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party with respect to such different defenses); or (iv) representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding, in any of which events the fees and expenses of one additional counsel shall be borne by the Indemnifying Party. The Indemnifying Party shall not settle or compromise any action or consent to the entry of a judgment that: (a) does not provide for the claimant to give an unconditional release to the Indemnified Party in respect of the Third Party Claim; (b) involves relief other than monetary damages; (c) places restrictions or conditions on the operation of the business of the Indemnified Party or any of its Affiliates; or (d) involves any finding or admission of liability or of any violation of applicable law. The Indemnifying Party shall not be liable for any settlement of any claim or action effected without its written consent; provided that such consent is not unreasonably withheld. After payment of any claim by the Indemnifying Party, the Indemnified Party, if requested by the Indemnifying Party, shall assign to the Indemnifying Party all rights the Indemnified Party may have against any applicable account debtor or settlementother responsible Person in respect of such claim. If the Indemnifying Party chooses to defend any Third Party Claim, the Indemnified Party shall make available to the Indemnifying Party any books, records or other documents within its control that are necessary or appropriate for such defense. Any expenses of any Indemnified Party for which indemnification is available hereunder shall be paid upon written demand therefor. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that an action by a third party may adversely affect it or its Affiliates other than solely 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 exclusive right to defend, compromise, or settle such action, and the Indemnifying Party will indemnify the Indemnified Party for the costs associated therewith. The Indemnifying Party will not be bound by any settlement of such an action effected without its consent (which will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment).

Appears in 1 contract

Samples: Agreement and Plan of Merger (Art Technology Group Inc)

Third Party Claims. Promptly after the receipt by any party entitled to indemnification (athe "Indemnified Party") If a claim, action, suit or proceeding pursuant to this Article VI of notice of the commencement ----------------- of any action against such Indemnified Party by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIIIparty, such Indemnified Party shall promptly notify shall, if a claim with respect thereto is to be made against SMTC Holdings, any HTM Stockholder or any SMTC Stockholder hereunder (the party obligated "Indemnifying Party") pursuant to indemnify this Article VI, give such Indemnified ------------------ Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such written notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense thereof in reasonable detail in light of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party circumstances then known to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any The failure to give such claim in good faith, the Indemnified Party notice shall not pay or settle relieve any Indemnifying Party from any obligation hereunder except where, and then solely to the extent that, such claimfailure actually and materially prejudices the rights of such Indemnifying Party. Notwithstanding the foregoing, the Indemnified Such Indemnifying Party shall have the right to pay or settle any defend such claim, at such Indemnifying Party's expense and with counsel of its choice reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party conducts the defense of such claim actively and diligently. If the Indemnifying Party assumes the defense of such claim, the Indemnified Party agrees to reasonably cooperate in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, defense so long as the case may be, for Indemnified Party is not materially prejudiced thereby. So long as the Indemnifying Party is conducting the defense of such claim unless actively and diligently, the Responsible Indemnified Party shall have consented may retain separate co- counsel at its sole cost and expense and may participate in the defense of such claim, and neither any Indemnifying Party nor any Indemnified Party will consent to the entry of any judgment or enter into any settlement with respect to such payment or settlementclaim without the prior written consent of the other, which consent will not be unreasonably withheld. If In the Responsible event the Indemnifying Party does not notify or ceases to conduct the defense of such claim actively and diligently, (x) the Indemnified Party within 15 days after may defend against, and consent to the receipt entry of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle any judgement or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include with respect to, such claim in any manner it may reasonably deem to be appropriate, (y) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against such claim, including attorney's fees and expenses and (z) the Indemnifying Party will remain responsible for any Losses the Indemnified Party may suffer as an unconditional term thereof the giving by the person or persons asserting a result of such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentthe full extent provided in this Article VI.

Appears in 1 contract

Samples: Reorganization and Merger Agreement (SMTC Corp)

Third Party Claims. (a) If a claim, action, suit In the event that any written claim or proceeding demand for which an Indemnifying Party may be liable to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall promptly, but in no event later than fifteen (15) days following such Indemnified Party’s receipt of such claim or demand (including a copy of any related written third party demand, claim or complaint) (a the “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends deliver a Claim Notice to seek indemnity with respect thereto under this Article VIII, such Indemnified the Indemnifying Party. The Indemnifying Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party be relieved of its obligations hereunder, except to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Responsible Indemnified Party fails to timely deliver the Claim Notice and the Indemnifying Party is actually and materially prejudiced thereby. The Responsible If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have 15 days after receipt of such notice be entitled to participate therein and to assume the conduct and controldefense thereof; provided, through counsel reasonably acceptable that, the Indemnifying Party shall provide written notice to the Indemnified Party at which notice shall confirm its obligation to indemnify the expense Indemnified Party pursuant to this Article XII with respect to such Third-Party Claim and inform the Indemnified Party of counsel to handle the Thirty Party Claim on behalf of the Responsible Indemnifying Party (which counsel shall be reasonably satisfactory to the Indemnified Party, ). After notice from the Indemnifying Party to the Indemnified Party of such election to so assume the settlement or defense thereof, and the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. The Indemnified Party shall cooperate fully with it the Indemnifying Party and its counsel in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting against any such claim in good faith, the Indemnified Third Party shall not pay or settle any such claimClaim. Notwithstanding the foregoing, the The Indemnified Party shall have the right to pay participate at its own expense in the defense of any Third Party Claim. Neither the Indemnifying Party, on the one hand, nor the Indemnified Party, on the other hand, shall admit liability to, or settle settle, compromise or discharge any such claim, provided that in such event it shall waive any right to indemnity therefor by Third Party Claim without the Responsible Party or from prior consent of the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementother Party, which consent will shall not be unreasonably withheld, conditioned or delayed; provided, however, the Indemnifying Party may settle, compromise or discharge any Third Party Claim the defense of which was assumed by the Indemnifying Party if such Third Party Claim provides only for the payment of monetary damages. If In the Responsible event the Indemnifying Party does elects not notify to defend any Third Party Claim, the Indemnified Party within 15 days after shall defend against such Third Party Claim in good faith and in a commercially reasonable manner at the receipt cost and expense of the Indemnified Indemnifying Party’s notice of a claim of indemnity hereunder that it elects to undertake , and the defense thereof; the Indemnified Indemnifying Party shall have the right to contest, settle or compromise the claim, participate in such defense at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgmentits own expense.

Appears in 1 contract

Samples: Asset Purchase Agreement (KCI Animal Health, LLC)

Third Party Claims. (a) If a claim, action, suit or proceeding by In the event an Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) is made against any person or entity entitled to which the Indemnified Party reasonably believes may result in a claim for indemnification pursuant to Section 8.2 hereof this Article VI, the Indemnified Party shall notify the Indemnifying Party of such claim with an Indemnification Claim Notice (an a Indemnified PartyThird Party Notice”), and if the Third Party Notice shall be accompanied by copies of any documentation submitted by the third party making such Third Party Claim (except that the Indemnified Party intends may withhold from the Indemnifying Party such communications with its legal counsel to seek indemnity with the extent that legal counsel advises that providing such communication could result in the loss of any attorney-client privilege or right under the work-product doctrine in respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claimsclaim, after giving due consideration to any “community of interest” or similar privilege, if any); provided, that the no delay or failure in delivering a Third Party Notice shall cause any Indemnified Party to so notify shall not relieve the Responsible Party of its obligations hereunder, forfeit any indemnification rights under this Article VI except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced therebyby such delay or failure. The Responsible Upon receipt of a Third Party Notice, the Indemnifying Party shall have 15 days after receipt be entitled (at its sole expense) to participate in the defense of such notice Third Party Claim, and, if the Indemnifying Party (at its sole expense) so chooses, to assume the conduct defense thereof with counsel selected by the Indemnifying Party and controlreasonably satisfactory to the Indemnified Party; provided, through however, that the Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim: (i) that is required by an insurer as a condition to the Indemnified Party’s eligibility to recover insurance proceeds on account of such Third Party Claim that such carrier control the matter, (ii) to the extent the Holdback Shares have yet to be fully released in accordance with the terms of this Article VI, where it is reasonably likely that the Losses resulting from such Third Party Claim will exceed the value of the then-remaining Holdback Shares, (iii) that is related to or arising in connection with any criminal Legal Proceeding or involving a Governmental Entity, (iv) where the claimant is seeking any remedy other than contractual monetary damages, (v) if the Indemnified Party believes in good faith that the Third Party Claim could (if adversely determined) have a material and adverse effect on its or its Affiliates’ reputation, or (vi) if the Indemnified Party is advised by legal counsel reasonably acceptable that, in its reasonable opinion, there is a conflict of interest that prevents the Indemnifying Party from adequately representing the Indemnified Party’s interests with respect to a Third Party Claims. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and for legal expenses subsequently incurred by the Indemnified Party shall cooperate with it in connection therewith; provided, that with the Responsible defense thereof. If the Indemnifying Party shall permit the Indemnified Party to participate in assumes such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faithdefense, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall will have the right to pay or settle any such claimparticipate in the defense thereof and to employ counsel, provided that in such event it shall waive any right to indemnity therefor at its own expense, separate from the counsel employed by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldIndemnifying Party. If the Responsible Indemnifying Party does chooses to defend any Third Party Claim, then all the parties will cooperate in the defense or prosecution of such Third Party Claim, including by retaining and (upon the Indemnifying Party’s request) providing to the Indemnifying Party all 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. Whether or not notify the Indemnifying Party has assumed the defense of the Third Party Claim, neither the Indemnifying Party nor the Indemnified Party within 15 days after will consent to the receipt entry of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle any judgment on or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim the Third Party Claim without the prior written consent of the other (not to be unreasonably withheld, conditioned or consent to entry of any judgmentdelayed).

Appears in 1 contract

Samples: Agreement and Plan of Merger (Fulgent Genetics, Inc.)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made ------------------ against any person or entity entitled to indemnification pursuant to Indemnified Party (other than the Xxxxx Claim, which shall be governed by the provisions of Section 8.2 hereof (an “Indemnified Party”5.6), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, provided that the -------- failure to so notify shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Indemnifying Party, of the settlement or defense thereof, thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that it is -------- reasonably anticipated by the Indemnified Party that the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by -------- such Indemnified Party; provided, further, that the Indemnifying Party shall not -------- ------- be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (iii) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in (but not control) the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (i) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (ii) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, which authorization shall not be unreasonably withheld, or (iii) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right -------- to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Article VIII and does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Software Inc)

Third Party Claims. (a) If a claim, action, suit any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not either a third party Surviving Corporation Indemnitee or a Verizon Indemnitee (each, a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”)such Indemnitee, and if such Indemnified Party intends to seek indemnity with respect thereto to which an Indemnitor is obligated to provide indemnification under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified partyAgreement, the “Responsible Party”) Indemnitee will give such Indemnitor prompt written notice thereof, but in any event not later than ten calendar days after receipt of notice of such claims; Third Party Claim, provided, however, that the failure of an Indemnitee to so notify the Indemnitor within the time period set forth herein shall not only relieve the Responsible Party of Indemnitor from its obligations hereunder, except obligation to indemnify to the extent that the Responsible Party Indemnitor is actually and materially prejudiced therebyby such failure or delay (whether as a result of the forfeiture of substantive rights or defenses or otherwise). The Responsible Upon receipt of notification of a Third Party Claim, the Indemnitor shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof at such Indemnitor’s expense with counsel reasonably satisfactory to the Indemnitee, provided that the Indemnitor shall not have the right to assume the defense of any Third Party Claim in the event such Third Party Claim is primarily for injunctive relief or criminal penalty of the Indemnitee, and in any such case, the reasonable fees and expenses of counsel to the Indemnitee in connection with such Third Party Claim shall be considered “Losses” for purposes of this Agreement. Whether or not the Indemnitor elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have 15 the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (1) the employment of such separate counsel has been specifically authorized in writing by the Indemnitor; (2) the Indemnitor has failed to assume the defense of such Third Party Claim within 20 calendar days after receipt of such notice to assume the conduct and control, through thereof with counsel reasonably acceptable satisfactory to such Indemnitee; or (3) the named parties to the Indemnified Party at proceeding in which such claim, demand, action or cause of action has been asserted include both the expense Indemnitor and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more good faith defenses that may be available to the Responsible Party, of Indemnitee that are in conflict with those available to the settlement Indemnitor or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party Indemnitor and Indemnitee have actual material conflicting interests with respect to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim, demand, action or cause of action. Notwithstanding the foregoing, the Indemnified Party Indemnitor shall have not be liable for the right to pay fees and disbursements of more than one counsel for all Indemnitees in connection with any one proceeding or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by similar or related proceedings arising from 121 the Responsible Party same general allegations or from circumstances. Without the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementprior written consent of an Indemnitee, which consent will shall not be unreasonably withheld. If withheld or delayed, the Responsible Party does Indemnitor will not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement of or consent to the entry of judgment in connection with any Third Party Claim that (i) would lead to liability or create any financial or other obligation on the part of the Indemnitee, (ii) does not include contain, as an unconditional term thereof thereof, the giving release of the Indemnitee from all liability in respect of such Third Party Claim or such Third Party Claim is not dismissed against the Indemnitee with prejudice and without the imposition of any financial or other obligation on the Indemnitee or (iii) admits the liability or fault of the Indemnitee (the “Settlement Requirements”). If a settlement offer solely for money damages (and otherwise satisfying the Settlement Requirements) is made to resolve a Third Party Claim and the Indemnitor notifies the Indemnitee in writing of the Indemnitor’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee and if the Indemnitee fails to consent to such settlement offer within ten calendar days after its receipt of such notice, Indemnitee may continue to contest such claim, free of any participation by the person or persons asserting such claim to all Indemnified Parties Indemnitor, and the amount of an unconditional release from all any ultimate liability with respect to such Third Party Claim that the Indemnitor has an obligation to pay hereunder shall be limited to the lesser of (x) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or (y) the aggregate Losses of the Indemnitee with respect to such claim. The party controlling any defense shall keep the other party advised of the status of such action, suit, proceeding or claim or consent to entry of any judgmentand the defense thereof and shall consider in good faith all reasonable recommendations made by the other party with respect thereto.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Fairpoint Communications Inc)

Third Party Claims. (a) If A Purchaser Indemnitee shall notify the Partners’ Representatives, and a claimSeller Indemnitee shall notify Purchaser, action, suit or proceeding by of any occurrence which may result in a third party (a “Third Party Claim”) is made against any person Claim for which such Purchaser Indemnitee or entity entitled to Seller Indemnitee shall seek indemnification from the Sellers or Purchasers pursuant to this Article VII. Forthwith following the receipt of notice of a Third Party Claim (other than with respect to a Real Estate Indemnification event, as to which Section 8.2 hereof 7.9(a) shall apply, and an Environmental Claim, as to which Section 7.9(b) shall apply), the party receiving the notice of the Third Party Claim shall (i) notify the other party of its existence, setting forth with reasonable specificity the facts and circumstances of which such party has received notice and, if the party giving such notice is an Indemnified Party”), specifying the basis hereunder upon which the Indemnified Party’s claim for indemnification is asserted, and if such Indemnified (ii) shall tender the defense of the Third Party intends Claim to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Indemnifying Party”) of such claims; provided, that the . No failure to so notify give timely notice shall not relieve the Responsible Indemnifying Party of its obligations hereunder, liability except to the extent that of actual prejudice resulting from such failure. If, within thirty (30) days thereafter, the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to notify the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible tender has been accepted by the Indemnifying Party shall permit the Indemnified Party to participate in such settlement (with or defense through counsel chosen by such Indemnified Partywithout a reservation of rights), then, except as herein provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay not, and the Indemnifying Party shall, have the right to contest, defend, litigate or settle any such claimThird Party Claim using counsel acceptable to the Indemnified Party. Notwithstanding the foregoing, the The Indemnified Party shall have the right to pay or settle be represented by counsel at its own expense in any such claimcontest, defense, litigation or settlement conducted by the Indemnifying Party, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have be entitled to reimbursement therefor if the Indemnifying Party shall lose its right to contest, defend, litigate and settle the Third Party Claim as herein provided. The Indemnifying Party shall lose its right to contest, defend, litigate and settle the Third Party Claim if it shall fail to diligently contest the Third Party Claim. So long as the Indemnifying Party has not lost its right and/or obligation to contest, defend, litigate and settle as herein provided, the Indemnifying Party shall have the exclusive right to contest, defend and litigate the Third Party Claim and shall have the exclusive right, in its discretion exercised in good faith, and upon the advice of counsel, to settle any such matter, either before or compromise after the claiminitiation of litigation, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall notsuch time and, except as hereinafter provided, upon such terms as it deems fair and reasonable, provided that, at least ten (10) days prior to any such settlement, written notice of its intention to settle shall be given to the Indemnified Party. Except as provided below, all expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Indemnifying Party in connection with the foregoing shall be paid by the Indemnifying Party. Notwithstanding the foregoing, without the prior written consent of the Indemnified PartyParty (which consent may be granted or withheld in its sole discretion), the Indemnifying Party shall not (i) enter into any settlement that does not include as an unconditional term thereof the giving delivery by the person claimant or persons asserting such claim plaintiff to all the Indemnified Parties Party of an unconditional a release from all liability with respect to such claim or litigation, (ii) enter into any settlement that attributes by its terms liability to the Indemnified Party, or (iii) consent to the entry of any judgmentjudgment that does not include as a term thereof a full dismissal of the litigation or proceeding with prejudice. If an Indemnified Party is entitled to indemnification against a Third Party Claim, and the Indemnifying Party fails to accept a tender of, or assume, the defense of a Third Party Claim pursuant to this Section 7.8, or if, in accordance with the foregoing, the Indemnifying Party shall lose its right to contest, defend, litigate and settle such a Third Party Claim, the Indemnified Party shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith and upon the advice of counsel, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnified Party deems fair and reasonable, provided that, at least ten (10) days prior to any such settlement, written notice of its intention to settle is given to the Indemnifying Party. If, pursuant to this Section 7.8, the Indemnified Party so contests, defends, litigates or settles a Third Party Claim for which it is entitled to indemnification hereunder as hereinabove provided, the Indemnified Party shall be reimbursed by the Indemnifying Party for the reasonable attorneys’ fees and other expenses of contesting, defending, litigating and/or settling the Third Party Claim which are incurred from time to time, forthwith following the presentation to the Indemnifying Party of itemized bills for said attorneys’ fees and other expenses and for any amount paid (including in settlement) in respect of the Third Party Claim. If the Indemnifying Party shall have defended and/or settled the Third Party Claim under a reservation of rights, such settlement or defense shall not bar any claim by the Indemnifying Party against the Indemnified Party that the Indemnified Party was not entitled to indemnification pursuant to this Article VII by the Indemnifying Party, or any action by the Indemnifying Party against the Indemnified Party to recover the Indemnifying Party’s expenses and amounts which it has paid (including in settlement) in respect of the Third Party Claim.

Appears in 1 contract

Samples: Stock and Unit Purchase Agreement (Graham Packaging Holdings Co)

Third Party Claims. (ai) If a claim, action, suit or proceeding A Purchaser Indemnified Party claiming indemnification under this Article IX against Seller with respect to any claims asserted against it by a third third-party (a “Third Party Claim”) is made against any person or entity entitled that would reasonably be expected to give rise to a right of indemnification pursuant under this Article IX shall notify Seller in writing of such Third Party Claim, together with a copy of all papers served with respect to Section 8.2 hereof such claim (an if any) (a Indemnified PartyClaim Notice”), and if within five (5) days of becoming aware of such Third Party Claim. If Seller gives notice (the “Notice of Assumption”) to the Purchaser Indemnified Party, within fifteen (15) days after the Purchaser Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify has delivered the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; providedClaim Notice, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice Seller elects to assume the conduct defense of the Third Party Claim (at Seller’s own cost and control, through counsel reasonably acceptable to expense) and will indemnify the Purchaser Indemnified Party at the expense of the Responsible Partyagainst such Third Party Claim, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party then Seller shall have the right to pay or settle any defend such claim, provided that in such event it shall waive any right Third Party Claim with counsel selected by Seller and who is reasonably acceptable to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Purchaser Indemnified Party, by all appropriate proceedings, which proceedings shall be prosecuted reasonably diligently by Seller to a final conclusion or settled in accordance with this Section 9.3(b). If Seller does not give such timely Notice of Assumption to the Purchaser Indemnified Party or if Seller will not assume the defense or agree to indemnify the Purchaser Indemnified Parties, the Purchaser Indemnified Parties will control the defense at the cost and expense of Seller, to the extent such Third Party Claim is indemnifiable hereunder. Seller shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that Seller shall not consent to the entry of a judgment or enter into any settlement that does without the prior written consent of the Purchaser Indemnified Party and a full general release for such Purchaser Indemnified Party. The Purchaser Indemnified Party may participate in, but not include as an unconditional term thereof control, any defense or settlement of any Third Party Claim controlled by Seller pursuant to this Section 9.3(b), and the giving by the person or persons asserting such claim to all Purchaser Indemnified Parties of an unconditional release from all liability Party shall bear its own costs and expenses with respect to such claim or consent participation; provided that if the Purchaser Indemnified Party has reasonably concluded that there is a conflict of interest between Seller and the Purchaser Indemnified Party, Seller shall bear the reasonable costs and expenses of one counsel to entry of the Purchaser Indemnified Party in connection with such defense. The Purchaser Indemnified Parties and Seller shall reasonably cooperate with each other in contesting any judgmentThird Party Claim.

Appears in 1 contract

Samples: Share Purchase Agreement (Sphere 3D Corp)

Third Party Claims. A Person entitled to indemnification under this Article VI (aan "Indemnified Party") If a claim, shall give prompt written notification to the Person from whom indemnification is sought (the "Indemnifying Party") of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is actually damaged as a result of such failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebygive notice. The Responsible Party shall have 15 Within 30 days after receipt delivery of such notification, the Indemnifying Party may, upon written notice to assume the conduct and control, through counsel reasonably acceptable thereof to the Indemnified Party at the expense Party, assume control of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such action, suit, proceeding or claim with counsel shall be borne by such reasonably satisfactory to the Indemnified Party. So long as If the Responsible Indemnifying Party is reasonably contesting any does not assume control of such claim in good faithdefense, the Indemnified Party shall control such defense. The Party not pay controlling such defense may participate therein at its own expense; provided, however, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that, based on advice from counsel, the Indemnifying Party and the Indemnified Party have conflicting interests or settle any defenses with respect to such action, suit, proceeding or claim. Notwithstanding , then the foregoing, reasonable fees and expenses of counsel to the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, be considered "Damages" for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt purposes of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall notnot agree to any settlement of such action, except with suit, proceeding or claim or consent to the entry of any judgment without the prior written consent of the Indemnified Party, enter into Indemnifying Party which shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or consent to the entry of any judgment that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an a complete, general and unconditional release of the Indemnified Party or Parties from all liability with respect to such claim thereto or that imposes any liability or obligation on the Indemnified Party or Parties without the prior written consent to entry of any judgmentthe Indemnified Party or Parties.

Appears in 1 contract

Samples: Stock Purchase and Sale Agreement (Emergent Information Technologies Inc)

Third Party Claims. (ai) If In the event that any Action is instituted, or that any Third Party Claim is asserted, the Indemnified Person seeking indemnification for any related Loss (including a claimBuyer Indemnified Person seeking indemnification for any related loss through an Offset Right) shall notify the Indemnifying Party of any such Action or claim promptly after receiving notice thereof (each, action, suit or proceeding by a third party (a “Third Party ClaimIndemnification Claim Notice) is made against ); provided, however, that no delay on the part of the Indemnified Person in giving any person such notice shall relieve an Indemnifying Party of any indemnification obligations unless, and only to the extent that, such Losses are materially increased, or entity entitled are not materially reduced, as a result of any failure by the Indemnified Person to indemnification pursuant give notice as contemplated by this Section 10.4(a)(i). Subject to the provisions of this Section 8.2 hereof (an “Indemnified Party”10.4(a)(i), and if such assuming the Indemnified Person does not have the right to elect or does not choose to elect in its Third Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice Indemnification Claim Notice to assume the defense of the Third Party Claim in accordance with Section 10.4(a)(v), the Indemnifying Party shall be entitled at its own expense to conduct and control, control the defense and settlement of such Third Party Claim on behalf of the Indemnified Person through counsel chosen by the Indemnifying Party and reasonably acceptable to the Indemnified Person if the Indemnifying Party notifies the Indemnified Person in writing within thirty (30) days (or sooner, if the nature of the Third Party Claim so requires) of its intent to do so and confirms that the Indemnifying Party shall be obligated to indemnify the Indemnified Person against all resulting Losses. If the Indemnifying Party does not elect within thirty (30) days (or sooner, if the nature of the Third Party Claim so requires) to defend against, negotiate, settle or otherwise deal with any Third Party Claim, the Indemnified Person may defend against, negotiate, settle or otherwise deal with such Third Party Claim with counsel of its choice at the expense of the Responsible Indemnifying Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Share Purchase Agreement (Invitae Corp)

Third Party Claims. In the event we reimburse you for a refund claim you have made, or if we otherwise provide you with a credit or payment with respect to any problem arising out of any transaction made with the Card, you are automatically deemed to assign and transfer to us any rights and claims (aexcluding tort claims) If a claimthat you have, action, suit had or proceeding by a may have against any third party for an amount equal to the amount we have paid to you or credited to your Card. You agree that you will not pursue any claim against or reimbursement from such third party for the amount that we paid or credited to your Card, and that you will cooperate with us if we decide to pursue the third party for the amount paid or credited to you. If we do not exercise our rights under this section, we do not give up our rights to exercise them in the future. Disclaimer of Warranties: EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT AND EXCEPT FOR ANY APPLICABLE WARRANTIES SET OUT IN THE CONSUMER PROTECTION ACT (a “Third Party Claim”) QUÉBEC), WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO YOU, WHETHER EXPRESS OR IMPLIED, REGARDING ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. Limitation of Liability: EXCEPT IN QUÉBEC, OR AS EXPRESSLY REQUIRED BY THIS AGREEMENT OR APPLICABLE LAW, WE WILL NOT BE LIABLE TO YOU FOR PERFORMING OR FAILING TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT UNLESS WE HAVE ACTED IN BAD FAITH. WITHOUT LIMITING THE FOREGOING, WE WILL NOT BE LIABLE TO YOU FOR DELAYS OR MISTAKES RESULTING FROM ANY CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOVERNMENTAL AUTHORITIES, NATIONAL EMERGENCIES, INSURRECTION, WAR, RIOTS, FAILURE OF MERCHANTS TO PERFORM OR PROVIDE SERVICES, FAILURE OF COMMUNICATION SYSTEMS, OR FAILURES OF OR DIFFICULTIES WITH OUR EQUIPMENT OR SYSTEMS. ALSO WITHOUT LIMITING THE FOREGOING, WE WILL NOT BE LIABLE TO YOU FOR ANY DELAY, FAILURE OR MALFUNCTION ATTRIBUTABLE TO YOUR EQUIPMENT, ANY INTERNET SERVICE, ANY PAYMENT SYSTEM OR ANY CUSTOMER SERVICE FUNCTION. IN THE EVENT THAT WE ARE HELD LIABLE TO YOU, YOU WILL ONLY BE ENTITLED TO RECOVER YOUR ACTUAL AND DIRECT DAMAGES. IN NO EVENT WILL YOU BE ENTITLED TO RECOVER ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EVEN IF YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES. Website and Availability: Although considerable effort is made against any person or entity entitled to indemnification pursuant ensure that our Website and other operational and communications channels available around the clock, we do not warrant these channels to Section 8.2 hereof (an “Indemnified Party”), be available and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, error free at all times. You agree that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent we will not be unreasonably withheldresponsible for temporary interruptions in service due to maintenance, website changes, or failures, nor will we be liable for extended interruptions due to failures beyond our control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, labour disputes and armed conflicts. If We will not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses that may affect your computer or other equipment. You agree to act responsibly with regard to the Responsible Party does Website and its use. You will not notify violate any laws, interfere or disrupt computer networks, impersonate another person or entity, violate the Indemnified Party within 15 days after the receipt rights of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestany third party, settle stalk, threaten or compromise the claimharass anyone, at the expense of the Responsible Partygain any unauthorized entry, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except or interfere with the consent of Website’s systems and integrity. Entire Agreement: This Agreement sets forth the Indemnified Partyentire understanding and Agreement between you and us, enter into whether written or oral, with respect to the subject matter hereof and supersedes any settlement that does not include as an unconditional term thereof the giving by the person prior or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability contemporaneous understandings or Agreements with respect to such subject matter. Governing Law: The parties agree that any claim or consent action brought pursuant to entry this Agreement will be brought in the exclusive jurisdiction of any judgmentthe courts of British Columbia and this Agreement will be construed in accordance with and governed by the laws of the Province of British Columbia and the laws of Canada applicable therein. FOR RESIDENTS OF QUÉBEC ONLY: The parties attorn to the jurisdiction of Québec and this Agreement will be construed in accordance with and governed by the laws of the province of Québec and the laws of Canada applicable therein.

Appears in 1 contract

Samples: www.cfshopcard.ca

Third Party Claims. (a) If a claim, action, suit claim or proceeding demand is made against an Indemnitee by any Person who is not a third party to this Agreement (a “Third Party Claim”) as to which such Indemnitee is made against any person or entity may be entitled to indemnification pursuant to Section 8.2 hereof this Agreement or any Ancillary Agreement, such Indemnitee shall notify the Indemnifying Party in writing (an “Indemnified Party”which notice obligation may be satisfied by providing copies of all notices and documents received by the Indemnitee relating to the Third Party Claim), and if in reasonable detail, of the Third Party Claim as promptly as practicable (and in any event within thirty (30) days) after receipt by such Indemnified Indemnitee of written notice of the Third Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claimsClaim; provided, however, that the failure to so notify provide notice of any such Third Party Claim pursuant to this sentence shall not relieve release the Responsible Indemnifying Party from any of its obligations hereunder, except and solely to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 days after receipt been actually materially prejudiced as a result of such failure. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. For all purposes of this Section 6.4(b), each Party shall be deemed to have notice of the matters set forth on Schedule 1.1(143)(viii). (c) Other than in the case of indemnification by a beneficiary Party of a guarantor Party pursuant to Section 2.10(b) (the defense of which shall be controlled by the beneficiary Party), the Indemnifying Party shall be entitled, if it so chooses, to assume and control the conduct defense thereof, and controlif it does not assume the defense of such Third Party Claim, through counsel to participate in the defense of any Third Party Claim in accordance with the terms of Section 6.5 at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the Indemnified Party at applicable Indemnitees (after consultation in good faith with the expense applicable Indemnitees), within thirty (30) days of the Responsible Party, receipt of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewithan indemnification notice from such Indemnitee; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, providedhowever, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Indemnifying Party shall not pay or settle be entitled to assume the defense of any Third Party Claim to the extent such claim. Notwithstanding the foregoingThird Party Claim (w) is an Action by a Governmental Entity, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 days after the receipt of the Indemnified Party’s notice (x) involves an allegation of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contestcriminal violation, settle or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.(y) seeks

Appears in 1 contract

Samples: Separation and Distribution Agreement (SharkNinja, Inc.)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice the Claim Notice with respect to a Third-Party Claim to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, control of the settlement or defense thereofof such the Third-Party Claim, through counsel of its own choosing (but reasonably satisfactory to the Indemnified Party) and at the Indemnifying Party's own expense, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to may participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that Party and the fees and expenses of such counsel shall be borne by such Indemnified Party with no right to indemnification therefor unless (i) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (ii) the Indemnified Party reasonably concludes (based on the advice of counsel) that there exists a conflict of interest between the interests of the Indemnified Party and the Indemnifying Party, or (iii) the Indemnifying Party has after a reasonable time failed to employ counsel to assume or to continue to maintain such defense, in each of which events the Indemnified Party may retain counsel which shall be reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay the reasonable fees and expenses of such counsel for the Indemnified Party (but in no event shall the Indemnifying Party be obligated to pay fees and expenses of more than one firm for all Indemnified Parties). So Except as otherwise provided in this Section 9.2(c), so long as the Responsible Indemnifying Party is reasonably contesting any such claim Third-Party Claim in good faith, the Indemnifying Party shall have the exclusive right to conduct and control the defense of the Third-Party Claim and the Indemnified Party shall not pay or settle any such claim. Notwithstanding Third-Party Claim without the foregoing, consent of the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheldIndemnifying Party. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of 's Claim Notice with respect to a claim of indemnity hereunder Third-Party Claim that it elects to undertake the defense thereof; thereof (or does not fulfill its commitment to undertake such defense), the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, Third-Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the written consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties Third-Party Claim of an unconditional release from all liability with respect to such claim Third-Party Claim to all Indemnified Parties (i.e., Assignor Indemnified Parties or consent to entry of any judgmentAssignee Indemnified Parties, as the case may be).

Appears in 1 contract

Samples: Asset Purchase Agreement (Scientific Industries Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding by a third party (a “Third an Indemnified Party Claim”) is made against any person or entity entitled intends ------------------ to seek indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII6, such Indemnified Party shall promptly notify Newco or the party obligated to indemnify such Indemnified Party Purchaser, as the case may be (such notified partythe "Indemnifying Party"), the “Responsible Party”) in writing of such claimsclaim describing such claim in reasonable detail; provided, that the failure to so notify provide such notice shall not relieve affect the Responsible -------- obligations of the Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Party unless it is actually and materially prejudiced thereby, subject, however, to the time periods specified in Section 6.1 hereof. The Responsible In the event that such claim involves a claim by a third party against the Indemnified Party, the Indemnifying Party shall have 15 30 days after receipt of such notice to assume the decide whether it will undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and if it so decides, the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to may -------- participate in such settlement or defense through counsel chosen by such Indemnified Partyit; and provided, providedfurther, that the fees and expenses of such counsel shall be borne by such -------- ------- the Indemnified Party. So long Notwithstanding anything in this Section 6.4(a) to the contrary, the Indemnifying Party may, without the consent of the Indemnified Party, settle or compromise any action or consent to the entry of any judgment which includes as an unconditional term thereof the Responsible Party is reasonably contesting any such claim in good faith, delivery by the claimant or plaintiff to the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, of a duly executed written release of the Indemnified Party shall have the right to pay or settle any from all liability in respect of such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementaction, which consent will not release shall be unreasonably withheldreasonably satisfactory in form and substance to counsel for the Indemnified Party. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 30 days after the receipt of the Indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party ; provided, that any such settlement shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an -------- unconditional term thereof the giving delivery by the person claimant or persons asserting such claim plaintiff to all Indemnified Parties the Indemnifying Party of an unconditional a duly executed written release of the Indemnifying Party from all liability with in respect to of such claim or consent to entry of any judgmentaction.

Appears in 1 contract

Samples: Stock Purchase Agreement (Interliant Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person a Seller Indemnified Party or entity entitled to indemnification pursuant to Section 8.2 hereof a Buyer Indemnified Party (an “Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIIIX, such Indemnified Party shall promptly notify Buyer or Seller, as the party obligated to indemnify such Indemnified Party case may be (such notified party, the “Responsible PartyIndemnitor) ), in writing of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible Party Indemnitor shall have 15 thirty (30) days after receipt of such notice to assume the undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, provided that the Responsible Party Indemnitor shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, providedhowever, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as the Responsible Party Indemnitor, at Indemnitor’s cost and expense, (1) has undertaken the defense of, and assumed full responsibility for all Covered Liabilities with respect to, such claim, (2) is reasonably contesting any such claim in good faith, by appropriate proceedings, and (3) has taken such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Party for payment of such claim, the Indemnified Party shall not pay or settle any such claim. Notwithstanding compliance by the foregoingIndemnitor with the preceding sentence, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, Indemnitor for such claim unless the Responsible Party shall have consented to such payment or settlementclaim. If, which consent will not be unreasonably withheld. If the Responsible Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder hereunder, the Indemnitor does not notify the Indemnified Party in writing that it elects elects, at Indemnitor’s cost and expense, to undertake the defense thereof; thereof and assume full responsibility for all Covered Liabilities with respect thereto, or gives such notice and thereafter fails to contest such claim in good faith or to prevent action to foreclose a lien against or attachment of the Indemnified Party’s property as contemplated above, the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Appears in 1 contract

Samples: Asset Purchase Agreement (Quicksilver Resources Inc)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”), and if such Indemnified Party party intends to seek indemnity with respect thereto under this Article VIIISection 10.2, such Indemnified Party shall promptly notify the party obligated to indemnify such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Indemnifying Party of its obligations hereunder, except to the extent that the Responsible Indemnifying Party is actually and materially prejudiced thereby. The Responsible Indemnifying Party shall have 15 thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Indemnifying Party, of the settlement or defense thereof, thereof and the Indemnified Party shall cooperate with it in connection therewith; provided, that (i) the Responsible Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party and (ii) the Indemnifying Party shall promptly be entitled to assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the parties agree, reasonably and in good faith, that such third party claim would give rise to Losses which are more than the amount indemnifiable by such Indemnifying Party pursuant to this Article 10; (ii) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (iii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iv) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (v) the Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnified Party’s reputation or future business prospects; or (vi) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnified Party. So long as the Responsible Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Indemnifying Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Indemnifying Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible Indemnifying Party does not notify the Indemnified Party within 15 thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; , the Indemnified Party shall have the right to contest, settle or compromise the claim, at the expense of the Responsible Party, claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Article 10 and does not include as an unconditional term thereof the giving by the person Person or persons Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Rainmaker Systems Inc)

Third Party Claims. Promptly after the receipt by any Person entitled to indemnification pursuant to this Article 6 (athe "Indemnified Party") If of notice of the assertion of a claim, action, suit claim or proceeding the commencement of any Action against such Indemnified Party by a third party (a "Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified Party”"), and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify the shall, if a claim with respect thereto is to be made against any party obligated to indemnify provide indemnification pursuant to this Article 9 (the "Indemnifying Party"), give such Indemnified Indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby. The Responsible Party shall have 15 days after receipt of such written notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense thereof in reasonable detail in light of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party circumstances then known to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party. So long as The failure to give such notice shall not relieve any Indemnifying Party from any obligation hereunder except where, and then solely to the Responsible extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party is shall have the right, at its option, to defend such claim, at such Indemnifying Party's expense and with counsel of its choice reasonably contesting any satisfactory to the Indemnified Party, provided that the Indemnifying Party conducts the defense of such claim in good faithactively and diligently. If the Indemnifying Party assumes the defense of such claim, the Indemnified Party shall agrees to reasonably cooperate in such defense so long as the Indemnified Party is not pay or settle any materially prejudiced thereby and the Indemnifying Party a) irrevocably acknowledges in writing full responsibility for and agrees to fully indemnify the Indemnified Party, and (b) furnishes satisfactory evidence of the financial ability to indemnify the Indemnified Party. The Indemnified Party may retain separate co-counsel at its sole cost and expense and may participate in the defense of such claim. Notwithstanding No Indemnifying Party will consent to the foregoing, entry of any judgment or enter into any settlement with respect to a Third Party Claim without the prior written consent of the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlementParty, which consent will not be unreasonably withheld, provided that such consent shall be granted in connection with any settlement (i) containing a full release of the Indemnified Party and (ii) in the case of a consent from an Indemnified Party, involves only monetary damages. If In the Responsible event the Indemnifying Party does not notify defend or ceases to conduct the defense of such Third Party Claim, (x) the Indemnified Party within 15 days after may defend against, and, consent to the receipt entry of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof; the Indemnified Party shall have the right to contest, settle any judgment or compromise the claim, at the expense of the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to, such Third Party Claim, (y) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against such Third Party Claim, including reasonable attorneys' fees and expenses and (z) the Indemnifying Party will remain responsible for any Losses the Indemnified Party may suffer as a result of such Third Party Claim to such claim or consent to entry of any judgmentthe full extent provided in this Article 6.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sheng Ying Entertainment Corp.)

Third Party Claims. (a) If a claim, action, suit or proceeding claim by a third party (a “Third Party Claim”) is made against any person or entity entitled to indemnification pursuant to Section 8.2 hereof (an “Indemnified indemnified Party”), and if such Indemnified indemnified Party intends to seek indemnity with respect thereto under this Article VIIIhereunder, such Indemnified the indemnified Party shall promptly (and in any case within 30 days of such claim being made and within the period provided in Section 6.5, if applicable) notify the party obligated to indemnify such Indemnified indemnifying Party (such notified party, the “Responsible Party”) of such claims; provided, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced therebyclaim. The Responsible indemnifying Party shall have 15 60 days after receipt of such notice to assume the to, without reserving any rights, undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party of its own choosing and at the expense of the Responsible Partyits own expense, of the settlement or defense thereof, and the Indemnified indemnified Party shall cooperate with it in connection therewith; providedprovided that (a) the indemnified Party may take any action necessary to preserve any rights or defenses in connection with a claim prior to the indemnifying Party undertaking the defense thereof; (b) after undertaking the settlement or defense of a claim, that the Responsible indemnifying Party shall permit the Indemnified indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified the indemnified Party, provided, that provided the fees and expenses of such counsel shall be borne by the indemnified Party and (c) the indemnifying Party shall promptly reimburse the indemnified Party for the full amount of any Loss resulting from such Indemnified Partyclaim and all related expenses incurred by the indemnified Party within the limits of this Article 6, including any expenses and attorney fees relating to the defense of the claim prior to the indemnifying Party undertaking the settlement or defense thereof (except for expenses contemplated by clause (b) preceding); and (d) that any such settlement or defense by the Sellers shall be subject to approval by Buyer, which approval shall not be unreasonably withheld. So long as the Responsible indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified indemnified Party shall not pay or settle any such claim. Notwithstanding any of the foregoing, the Indemnified indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from indemnifying Party. Subject to the Escrow Accountlimitations set forth in Section 6.5, as if the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement, which consent will not be unreasonably withheld. If the Responsible indemnifying Party does not notify the Indemnified indemnified Party within 15 60 days after the receipt of the Indemnified indemnified Party’s 's notice of a claim of indemnity hereunder that it elects to undertake the settlement or defense thereof; , the Indemnified indemnified Party shall have the right to contest, settle or compromise the claim, at claim in the expense exercise of its reasonable judgment (but with due regard for obtaining the Responsible Party, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.most favorable outcome reasonably likely under the

Appears in 1 contract

Samples: Interest Purchase Agreement (Data Documents Inc)

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