Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply: (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to: (i) approval by any relevant insurers (without prejudice to Section 11.3(f); and (ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim; (b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a): (i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim; (ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and (iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed; (c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if: (i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or (ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b); (d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim; (e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of: (i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and (ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification; (f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and (g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 20 contracts
Sources: Supply Agreement, Supply Agreement, Supply Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or and 11.3(b)) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) above applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 7 contracts
Sources: Standing Offer Agreement, Standing Agreement, Standing Agreement
Conduct of Claims. In the (i) As soon as reasonably practicable and in any event within twenty (20) Business Days after becoming aware of circumstances giving rise or likely to give rise to any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person claim made in respect of which an indemnity is provided indemnified matter under this § 21.6 ("Claim"), the non-defaulting Party ("Indemnity Claiming Party") shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Supplier pursuant Indemnity Claiming Party to ARTICLE 11, enable it to understand the following provisions shall apply:
(a) subject grounds upon which the Claim is likely to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); andbased.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Supplier Indemnity Defaulting Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) above, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i), the Indemnity Defaulting Party shall, subject to providing the party entitled to indemnification Indemnity Claiming Party with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such actionaction or proceeding, permit or require the Supplier be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Indemnified Person at the Supplier’s Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim Claim and of any incidental negotiations; provided that the person entitled to indemnification . The Indemnity Claiming Party shall give the Supplier (provided at the Supplier’s cost) Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(biii) with With respect to any claim Claim conducted by the Supplier Indemnity Defaulting Party pursuant to Section 11.3(a§ 21.6(c)(ii):
(iI) the Supplier Indemnity Defaulting Party shall keep the person entitled to indemnification Indemnity Claiming Party fully informed and consult with it about material elements (including the making of any payment or settlement) of the conduct of the claimClaim;
(iiII) the Supplier Indemnity Defaulting Party shall not bring the name of the person entitled Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant to indemnification such Claim advised by skilled and experienced counsel; or
(b) statements made by the Indemnity Defaulting Party regarding (other than to the extent that any such statements regarding the Buyer are established as a matter of fact), or any Group Member thereof) into disreputeon behalf of, the Indemnity Claiming Party; and
(iiiIII) the Supplier Indemnity Defaulting Party shall not pay or settle such claims admit any liability in respect of a Claim without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;Indemnity Claiming Party.
(civ) a person entitled to indemnification The Indemnity Claiming Party shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(iI) the Supplier Indemnity Defaulting Party is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a§ 21.6(c)(ii);
(II) the Indemnity Defaulting Party fails to notify the Indemnity Claiming Party of its intention to take conduct of the relevant Claim within twenty (20) Business Days of the notice from the Indemnity Claiming Party under § 21.6(c)(i) above or notifies the Indemnity Claiming Party that it does not intend to take conduct of the Claim; and
(III) the Indemnity Defaulting Party fails to comply with any provision of this § 21.6(c) which materially:
(a) increases the liability or exposure of the Indemnity Claiming Party to the relevant Claim; or
(iib) prejudices the Supplier fails to comply Indemnity Claiming Party's position in any material respect with defending the provisions of Sections 11.3(a) or 11.3(b);relevant Claim.
(dv) the person entitled to indemnification pursuant to ARTICLE 11 The Indemnity Claiming Party shall be free at any time to give notice to the Supplier Indemnity Defaulting Party that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim Claim (or of any incidental negotiations) to which Section 11.3(a§ 21.6(c)(ii) applies. On receipt of such notice the Supplier Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such claim Claim to the person entitled to indemnificationIndemnity Claiming Party, and shall provide to the person entitled to indemnification Indemnity Claiming Party all reasonable co- operationcooperation, access and assistance for the purposes of considering and resisting such claim;.
(evi) if If the Supplier Indemnity Claiming Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released from any liability under any indemnity under this Agreement in respect of such Claim, subject to:
(I) the Indemnity Defaulting Party paying the costs or expenses of the Indemnity Claiming Party, which were incurred by the Indemnity Claiming Party in connection with the Claim prior to the date on which the Indemnity Claiming Party gives any notice pursuant to § 21.6(c)(v); and
(II) the Indemnity Defaulting Party remaining liable for the finally agreed or determined amount of losses, costs, charges, expenses and other liabilities arising in relation to such Claim but excluding therefrom any agreed or determined amount to the extent that it has been materially increased by reason of the Indemnity Claiming Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant to such Claim advised by skilled and experienced counsel.
(vii) If the Indemnity Defaulting Party pays to the person entitled to indemnification Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the person entitled to indemnification subsequently Indemnity Claiming Party separately recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim Claim under the indemnity, the person entitled to indemnification Indemnity Claiming Party shall forthwith as soon as reasonably practicable repay to the Supplier whichever is Indemnity Defaulting Party the lesser of:
(iI) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any reasonable out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Indemnity Claiming Party in recovering the same; and
(iiII) the amount paid to the person entitled to indemnification Indemnity Claiming Party by the Supplier Indemnity Defaulting Party in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 6 contracts
Sources: Individual Power Purchase Agreement, Individual Power Purchase Agreement, Individual Power Purchase Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b10.2(b), 11.3(c10.2(c) and 11.3(d10.2(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f10.2(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a10.2(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a10.2(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a10.2(a) or 11.3(b10.2(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 10 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a10.2(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 5 contracts
Sources: Supply Agreement, Supply Agreement, Supply Agreement
Conduct of Claims. In connection with the event indemnities in favour of any claimsIndemnified Person under this Agreement, statutory feesother than in relation to any matter which is an Issue under (and as defined in) the Tax Consultation Letter:
7.6.1 the Lessor will as soon as practicable notify the Lessee if a claim is made, costs, charges, penalties (including without limitation or if it becomes aware that a claim may be made against the Lessor or any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from other Indemnified Person which may give rise to a person Loss in respect of which the Lessor or any other Indemnified Person is or may become entitled to an indemnity under clause 7.4;
7.6.2 a notification under clause 7.6.1 shall give such details as the Lessor or the other Indemnified Person then has regarding the claim or potential claim and any Loss or potential Loss;
7.6.3 if the claim or potential claim may give rise to a Loss in respect of which the liability of the Lessor or such other Indemnified Person is provided by fully insured under the Supplier pursuant protection and indemnity insurances relating to ARTICLE 11the Ship, the following provisions shall applyLessor will act, and will procure that any other Indemnified Person will act, in accordance with the directions of the protection and indemnity club or association in which the Ship is entered in relation to defending, accepting or settling that claim, preserving nevertheless the rights of the Lessor against the Lessee under this Agreement and the other Lease Documents;
7.6.4 subject to clause 7.6.1 the Lessor will not, and will procure that no other Indemnified Person will, settle any claim or discharge and pay any court judgment or administrative penalty in respect of any claim unless:
(a) subject to Sections 11.3(b)the Lessor is of the opinion, 11.3(c) and 11.3(d)acting in good faith, where it appears that a person is or may be entitled to indemnification from the Supplier continuance of the proceedings in respect of all (but not part only) such claim and/or the non-payment of any court judgment or administrative penalty will result in criminal liability for, or the imposition of a civil penalty on, or the attachment of any assets of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by Lessor or any relevant insurers (without prejudice to Section 11.3(f)other Indemnified Person; and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;or
(b) with respect the Lessor and the Lessee do not agree that there are reasonable grounds for disputing such claim or for a successful appeal against such judgment or penalty (as appropriate), whereupon the Lessee shall have the right (subject always to paragraph (a) above) to seek an opinion from leading counsel as to whether there is more than a sixty-five per cent (65%) chance of successfully disputing such claim or for such an appeal to be successful (and if such leading counsel is of that opinion, any claim conducted costs reasonably incurred by the Supplier pursuant Lessee in obtaining such opinion shall be reimbursed by the Lessor and the Lessor will not settle the claim or discharge or pay the applicable judgment) provided however that if leading counsel is of the opinion that there is a less than sixty-five per cent (65%) chance of successfully disputing the action or for such an appeal to Section 11.3(a):
(i) be successful, then the Supplier Lessor shall keep the person be entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) or discharge or pay the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) court judgment or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (administrative penalty, as the case may be) the conduct of . It is agreed that if any defence, dispute, compromise or appeal insurers have made a partial payment in respect of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier Lessor shall promptly take all steps necessary to transfer the conduct of such claim have no responsibility to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) Lessee if the Supplier pays insurers subsequently settle a claim in exercise of their rights of subrogation. The Lessor shall agree not to the person entitled to indemnification an amount settle any claim or discharge and pay any court judgment or administrative penalty in respect of an indemnity and the person entitled any claim, if it is secured to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred its reasonable satisfaction by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that Lessee against the amount of such recovery aggregated with any sum recovered from claim, court judgment or administrative penalty and the Supplier exceeds any loss sustained by the person entitled to indemnification;
Lessor is satisfied (fin its absolute discretion) the Supplier shall inform the person entitled to indemnification that none of the requirements of circumstances envisaged in clause 7.6.5(e) below shall apply or arise if the Lessor does not settle the claim or discharge or pay any insurer who may have an obligation to provide an indemnity judgment or penalty in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.thereof;
Appears in 5 contracts
Sources: Lease Agreement (Seaspan CORP), Lease Agreement (Seaspan CORP), Lease Agreement (Seaspan CORP)
Conduct of Claims. In Unless and until a Relevant Event shall have occurred, and without prejudice to, or constituting a pre-condition to, the event of any claimsLessor's right to be indemnified pursuant to, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from this Lease:
9.5.1 the Lessor shall notify the Lessee upon receiving a person claim in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person Lessor is or may become entitled to an indemnity under clause 9.4 as soon as practicable following receipt of such claim;
9.5.2 subject to the prior written approval of the Lessor (such approval not to be unreasonably withheld or unreasonably delayed), the Lessee shall be entitled to indemnification from take, in the Supplier in respect of all (but not part only) name of the liability arising out of a claimLessor, such person entitled action as the Lessee shall see fit to indemnification may at its sole election and defend or avoid any such Indemnity Losses as are referred to in clauses 9.4.1, 9.4.2, 9.4.3 or 9.4.4 or to recover the same from any third party, subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); the Lessee first ensuring that the Lessor is indemnified and
(ii) , if the Supplier providing the party entitled to indemnification with a Lessor so requires, secured indemnity to its reasonable satisfaction against all costs Indemnity Losses thereby incurred or to be incurred and expenses (including legal expenses) all Taxes incurred or to be incurred as a consequence thereof; and
9.5.3 the Lessor shall, to the extent that it may incur by reason is practical so to do, consult with the Lessee before making any payment to a third party in respect of such Indemnity Losses as are referred to in clauses 9.4.1, 9.4.2, 9.4.3 or 9.4.4 and, to the extent that the Lessee is entitled to take action to avoid such Indemnity Losses in accordance with clause 9.5.2 and subject to the Lessee first ensuring that the Lessor is indemnified and secured to the Lessor's reasonable satisfaction against all Indemnity Losses thereby incurred or to be incurred and all Taxes incurred or to be incurred as a consequence thereof, the Lessor shall at the Lessee's request co-operate with the Lessee in taking such action. Notwithstanding the above, permit the Lessor shall not be obliged to take any such action where the Lessor notifies the Lessee that it considers in its conclusive opinion but acting in good faith that it is or require would be materially prejudicial to the Supplier interests of the Lessor Group or any member thereof for such action to dispute be taken. The Lessor shall not be obliged to give any reasons for such notification but, when providing the Lessee with such notification, the Lessor will provide the Lessee with written confirmation from a board member of (a) the Lessor Agent where the claim on behalf referred to in clause 9.5.1 shall be in respect of the person entitled an amount less than or equal to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, five million Pounds ((pound)5,000,000) or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with the Lessor Parent where the claim referred to in clause 9.5.1 shall be in respect of an amount in excess of five million Pounds ((pound)5,000,000), that the decision not to take any claim conducted such action was taken after consideration by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements senior management of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationLessor Agent or, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) , the conduct Lessor Parent. Any amount or any increase in any amount payable by the Lessor as a result of any defencedelay consequent upon the operation of clauses 9.5.2 and 9.5.3 shall, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes avoidance of considering and resisting such claim;
(e) if doubt, be for the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value account of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterLessee.
Appears in 5 contracts
Sources: Lease Agreement (Golar LNG LTD), Lease Agreement (Golar LNG LTD), Lease Agreement (Golar LNG LTD)
Conduct of Claims. In 14.1 If a party entitled to indemnification under Clause 13 (the event “Indemnified Party”) becomes aware of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person matter which may give rise to a claim by a third party in respect of which an indemnity is provided the other party (the “Indemnifying Party”) may be required to indemnify the Indemnified Party (a “Relevant Claim”) or any proceedings shall be instituted against the Indemnified Party which may give rise to a Relevant Claim, the Indemnified Party shall give notice thereof in writing to the Indemnifying Party within 20 days of becoming aware of such Relevant Claim or such proceedings, stating in reasonable detail the nature of the matter on a without prejudice basis, if practicable and the amount claimed. Notwithstanding the foregoing, the failure of any Indemnified Party to give notice pursuant to this Clause 14.1 shall not relieve the Indemnifying Party of its obligations under Clause 13.
14.2 The Indemnifying Party shall have the option, at its own expense and subject to the Indemnified Party being indemnified by the Supplier Indemnifying Party against all costs and liabilities incurred by the Indemnified Party in relation thereto, to assume the defence of a Relevant Claim, including the instruction of legal advisers reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others which the Indemnifying Party may designate in such proceedings and the Indemnifying Party shall pay the fees and disbursements of such legal advisers related to such proceedings. Within 30 days of the receipt of notice from the Indemnified Party pursuant to ARTICLE 11Clause 14.1 (or sooner, if the nature of the Relevant Claim requires), the following provisions Indemnifying Party shall applynotify the Indemnified Party whether it chooses to assume the defence of the Relevant Claim, which notice shall specify any reservations or exceptions.
14.3 If the Indemnifying Party exercises the option referred to in Clause 14.2:
14.3.1 the Indemnified Party shall provide to the Indemnifying Party and its advisers reasonable access to its personnel and to its premises, assets and documents and records in its possession or under its control, and give the Indemnifying Party any information and assistance as it shall reasonably request, and the Indemnifying Party may, at its cost, take copies of such documents and records as it reasonably requires;
14.3.2 the Indemnified Party shall take any action and institute any proceedings, to enable the Indemnifying Party to dispute, resist, appeal, compromise, defend, remedy or mitigate the Relevant Claim or enforce against another person the Indemnified Party’s rights in relation to the Relevant Claim;
14.3.3 the Indemnifying Party shall, if so required by the Indemnified Party, maintain consultation with the Indemnified Party on all aspects of such proceedings and shall provide the Indemnified Party with all information reasonably requested by it in relation to such proceedings; and
14.3.4 the Indemnified Party shall have the right to retain its own legal advisers, but the fees and expenses of such legal advisers shall be at the expense of the Indemnified Party unless:
(a) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such legal advisers; or
(b) the named parties to any such proceedings (including any added parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same legal advisers would be inappropriate due to actual or potential differing interests between them.
14.4 If the Indemnifying Party does not exercise its option contained in Clause 14.2, or fails to notify the indemnified Party that it chooses to exercise such option within the relevant timetable set out in that Clause, in the event of a Relevant Claim the Indemnified Party shall, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from being indemnified by the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction Indemnifying Party against all costs and expenses (including legal expenses) that it may incur liabilities incurred in so doing:
14.4.1 take or procure such action to be taken as the Indemnifying Party shall reasonably request to deal with a Relevant Claim;
14.4.2 if so required by reason of such actionthe Indemnifying Party, permit or require maintain consultation with the Supplier to dispute the claim Indemnifying Party on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct all aspects of any defence, dispute, compromise, or appeal proceedings in defence of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disreputea Relevant Claim; and
(iii) 14.4.3 provide the Supplier Indemnifying Party with all information reasonably requested by it in relation to such proceedings.
14.5 Unless the Indemnifying Party has failed to assume the defence of a Relevant Claim, the Indemnified Party shall not pay or admit liability in respect of a Relevant Claim, nor compromise, nor settle such claims any proceedings in defence of a Relevant Claim, without the prior written consent of the person entitled to indemnification, Indemnifying Party (such consent not to be unreasonably withheld or delayed;). No Indemnifying Party shall consent to entry of any judgment or settle any proceedings in defence of a Relevant Claim without the consent of the Indemnified Party if the effect thereof is to permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered directly or indirectly against the Indemnified Party.
(c) 14.6 No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened Relevant Claim in respect of which any Indemnified Party is or could have been a person party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Relevant Claim.
14.7 Any liabilities for which an Indemnified Party is entitled to indemnification or contribution under Clause 13 shall be paid by the Indemnifying Party to the Indemnified Party as such liabilities are incurred. The indemnity and contribution agreements contained in Clause 13 shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnified Party and (ii) any termination of this Agreement.
14.8 Any claim on account of a liability which does not result from a Relevant Claim shall be asserted by written notice given by the Indemnified Party to the applicable Indemnifying Party. Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnified Party shall be free to pay or settle any claim on pursue such terms remedies as it thinks fit (and without prejudice may be available to its rights and remedies under such party as contemplated by this Agreement) if:.
(i) 14.9 If payment is made by or on behalf of any Indemnifying Party to any Indemnified Party in connection with any Relevant Claim, such Indemnifying Party shall be subrogated to and shall stand in the Supplier place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right, defence or claim relating to such Relevant Claim against any claimant or plaintiff asserting such Relevant Claim or against any other Person. Such Indemnified Party shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defence or claim.
14.10 In an action in which the Indemnifying Party is not entitled toa named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the parties shall endeavour to substitute the Indemnifying Party for the named defendant if they conclude that substitution is desirable and practical. If such substitution or addition cannot be achieved for any reason or is not permitted or instructedrequested, take conduct the named defendant shall allow the Indemnifying Party to manage the action as set forth in this Clause, and the Indemnifying Party shall fully indemnify the named defendant against all costs of defending the claim in accordance with Section 11.3(aaction (including court costs, sanctions imposed by a court, legal fees, experts’ fees and all other external expenses); or
(ii) , the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct costs of any defencejudgment or settlement, dispute, compromise or appeal and the cost of any claim (interest or of penalties relating to any incidental negotiations) judgment or settlement.
14.11 The Indemnified Party shall have no right to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount indemnity under Clause 13 in respect of any liability to the extent that it actually recovers any monies in respect of such liability under any insurances it maintains. If an indemnity Indemnified Party receives a payment in respect of a liability pursuant to the indemnities contained in Clause 13 from the Indemnifying Party and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim monies under the indemnityits insurances in respect of such liability, the person entitled to indemnification Indemnified Party shall forthwith repay to reimburse the Supplier whichever is the lesser of:
(i) Indemnifying Party an amount equal to the sum recovered monies received under its insurances.
14.12 The Indemnified Party shall use its commercially reasonable efforts to seek or collect or recover any insurance monies (or save from any captive insurance subsidiary) to which the value of the saving or benefit obtained) less Indemnified Party is entitled in connection with any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled liability for which it is indemnified under Clause 13.
14.13 The Indemnified Party shall use its commercially reasonable endeavours to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier mitigate any loss in respect of the claim which it is indemnified under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterClause 13.
Appears in 5 contracts
Sources: Transitional Services Agreement, Transitional Services Agreement (Genworth Financial Inc), Transitional Services Agreement (Genworth Financial Inc)
Conduct of Claims. In 5.1 This paragraph 5 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule 9.1, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "TUPE Beneficiary" and the party giving the indemnity is referred to as the "TUPE Indemnifier".
5.2 If the TUPE Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the TUPE Beneficiary is, or may become entitled to, indemnification under this Schedule 9.1 ("TUPE Claim"), the TUPE Beneficiary shall give notice to the TUPE Indemnifier as soon as reasonably practicable and in any event within ten (10) Working Days of receipt of the same.
5.3 Subject to paragraphs 5.4 and 5.5, on the giving of a notice by the Supplier TUPE Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 5.2 above, where it appears that a person the TUPE Beneficiary is or may be entitled to indemnification from the Supplier TUPE Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe TUPE Claim, such person entitled the TUPE Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification TUPE Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf TUPE Claim in the name of the person entitled to indemnification TUPE Beneficiary at the SupplierTUPE Indemnifier’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim TUPE Claim and of any incidental negotiations; provided that negotiations relating to the person entitled TUPE Claim. If the TUPE Indemnifier does elect to indemnification conduct the TUPE Claim, the TUPE Beneficiary shall give the Supplier (provided at the Supplier’s cost) TUPE Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;TUPE Claim and, subject to paragraph 5.5 below, the TUPE Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the TUPE Claim without the prior written consent of the TUPE Indemnifier.
(b) with 5.4 With respect to any claim TUPE Claim conducted by the Supplier TUPE Indemnifier pursuant to Section 11.3(a):paragraph 5.3 above:
(ia) the Supplier TUPE Indemnifier shall keep the person entitled to indemnification TUPE Beneficiary fully informed and consult with it about material elements of the conduct of the claimTUPE Claim;
(iib) the Supplier TUPE Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) TUPE Beneficiary into disrepute; and;
(iiic) the Supplier TUPE Indemnifier shall not pay or settle such claims TUPE Claim without the prior written consent of the person entitled to indemnificationTUPE Beneficiary, such consent not to be unreasonably withheld or delayed;; and
(cd) a person the TUPE Indemnifier shall conduct the TUPE Claim with all due diligence.
5.5 The TUPE Beneficiary shall be entitled to indemnification have conduct of the TUPE Claim and shall be free to pay or settle any claim TUPE Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(ia) the Supplier TUPE Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim TUPE Claim in accordance with Section 11.3(a)paragraph 5.3 above;
(b) the TUPE Indemnifier fails to notify the TUPE Beneficiary of its intention to take conduct of the relevant TUPE Claim within ten (10) Working Days of the notice from the TUPE Beneficiary under paragraph 5.2 above or if the TUPE Indemnifier notifies the TUPE Beneficiary that it does not intend to take conduct of the TUPE Claim; or
(iic) the Supplier TUPE Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 5.4 above.
5.6 With respect to any TUPE Claim for which the DCC or 11.3(bany Replacement Contractor is the TUPE Beneficiary and the conduct of which the DCC, acting reasonably, considers is likely to have an adverse impact on the general public's perception of the DCC or any Replacement Contractor ("Sensitive TUPE Claim");
(d) , the person TUPE Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive TUPE Claim with the DCC's prior written consent. If the DCC withholds such consent and elects that it or the Replacement Contractor shall conduct the defence, dispute, compromise or appeal of the Sensitive TUPE Claim, it shall (or shall procure the Replacement Contractor shall) conduct the Sensitive TUPE Claim with all due diligence and if any failure to ARTICLE 11 do so results in an increase in the amount recoverable by the TUPE Beneficiary in respect of an indemnity under this Agreement, the TUPE Indemnifier shall only be liable to indemnify the TUPE Beneficiary in respect of that amount which would have been recoverable by the TUPE Beneficiary had it conducted the Sensitive TUPE Claim with all due diligence.
5.7 The DCC or Replacement Contractor shall be free at any time to give written notice to the Supplier TUPE Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) TUPE Claim to which Section 11.3(a) appliesparagraph 5.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 5.3 if, in the reasonable opinion of the DCC, the TUPE Claim is, or has become, a Sensitive TUPE Claim. On receipt In such cases, the provisions of such notice paragraph 5.6 above shall apply.
5.8 If the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier TUPE Indemnifier pays to the person entitled to indemnification TUPE Beneficiary an amount in respect of an indemnity and the person entitled to indemnification TUPE Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:6
(ia) an amount equal to the sum recovered (or the value of the saving discount, credit, saving, relief, other benefit or benefit amount otherwise obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification TUPE Beneficiary in recovering or obtaining the same; and
(iib) the amount paid to the person entitled to indemnification TUPE Beneficiary by the Supplier TUPE Indemnifier in respect of the claim TUPE Claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification TUPE Beneficiary to pursue such recovery and that the Supplier TUPE Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier TUPE Indemnifier exceeds any loss Loss sustained by the person entitled to indemnification;
TUPE Beneficiary (f) including for this purpose any indirect Losses sustained by the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who TUPE Beneficiary which may have an obligation to provide an indemnity in respect of any liability arising under be excluded by this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from being recovered from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterTUPE Indemnifier).
Appears in 4 contracts
Sources: Tupe Agreement, Schedule 9.1 Tupe, Tupe Agreement
Conduct of Claims. In (1) Whenever a claim for indemnification shall arise under this Section, the event party seeking indemnification (the "Indemnified Party"), shall notify the party from whom such indemnification is sought (the "Indemnifying Party") in writing of the Proceeding and the facts constituting the basis for such claim in reasonable detail;
(2) Upon delivery of such notice, such Indemnified Party shall have a duty to take all reasonable steps to mitigate any claimslosses, statutory feesliabilities, costs, chargescharges and expenses relating to any such Proceeding;
(3) Such Indemnifying Party shall have the right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided, penalties however, that counsel to the Indemnifying Party shall not (including except with the consent of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; and
(4) No Indemnifying Party shall, without limitation any legal coststhe prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), contributionssettle or compromise or consent to the entry of any judgment with respect to any litigation, compensationsor any investigation or proceeding by any governmental agency or body, cost recoveriescommenced or threatened, expenses or fines being levied or claimed from a person any claim whatsoever in respect of which indemnification could be sought under this Section unless such settlement, compromise or consent (A) includes an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification unconditional release of each Indemnified Party from the Supplier in respect of all (but not part only) of the liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a claimstatement as to or an admission of fault, such person entitled culpability or a failure to indemnification may at its sole election and subject to:
(i) approval act by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 4 contracts
Sources: Investment Rights Agreement (Smartalk Teleservices Inc), Subscription Agreement (7th Level Inc), Subscription Agreement (Informix Corp)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Whenever a claim for indemnification shall arise under this Section 11.3(f); and
(ii) the Supplier providing 17 as a result of a third-party claim, the party entitled to seeking indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expensesthe "Indemnified Party"), shall notify the party from whom such indemnification is sought (the "Indemnifying Party") that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf in writing of the person entitled to indemnification at Proceeding and the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of facts constituting the basis for such claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all in reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claimdetail;
(ii) Such Indemnifying Party shall have the Supplier right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided, however, that counsel to the Indemnifying Party shall not bring (except with the name consent of the person entitled relevant Indemnified Party) also be counsel to indemnification such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or any Group Member thereof) into disreputeseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; and
(iii) the Supplier shall not pay or settle such claims No Indemnifying Party shall, without the prior written consent of the person entitled to indemnification, such Indemnified Parties (which consent shall not to be unreasonably withheld withheld), settle or delayed;
(c) a person entitled compromise or consent to indemnification shall be free the entry of any judgment with respect to pay any litigation, or settle any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim on such terms as it thinks fit (and without prejudice to its rights and remedies whatsoever in respect of which indemnification could be sought under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute17 unless such settlement, compromise or appeal consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 4 contracts
Sources: Purchase Agreement (Document Security Systems Inc), Purchase Agreement (Sanders Morris Harris Group Inc), Purchase Agreement (Document Security Systems Inc)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b11.2(b), 11.3(c11.2(c) and 11.3(d11.2(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f11.2(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a11.2(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a11.2(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a11.2(a) or 11.3(b11.2(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a11.2(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 4 contracts
Sources: Supply Agreement, Supply Agreement, Supply Agreement
Conduct of Claims. In 39.1 The Supplier agrees (and shall procure that its Sub-contractors agree) that the event Authority has the sole right, on giving written notice to such effect to the Supplier at any time, to control of any claims, statutory fees, costs, charges, penalties proceedings in relation to any Third Party Claim (including without limitation any legal costsclaim by employees of the either the Authority or the Supplier), contributionsregardless of whether the Supplier (or any Sub-contractor) is also a party to such proceedings.
39.2 The Authority agrees that it shall not settle or compromise any Third Party Claim giving rise to losses exceeding £10,000 (ten thousand pounds) for which the Supplier is liable to indemnify or compensate the Authority under this Contract without prior consultation with the Supplier. The Authority shall keep the Supplier reasonably informed as to the progress and status of any such Third Party Claim until such Third Party Claim is settled or withdrawn.
39.3 If, compensationsin contesting, cost recoveriessettling or compromising any Third Party Claim, expenses the Authority takes or fines being levied fails to take any action which prejudices any entitlement of the Supplier to recover any portion of the claim from any insurer under any insurance policy maintained by the Supplier in accordance with this Contract, the liability of the Supplier to indemnify or claimed from a person compensate the Authority in respect of such claim shall be reduced by such portion.
39.4 The Supplier undertakes that:
39.4.1 it shall not, without the Approval of the Authority, settle or compromise any claim (whether insured or uninsured) to which an indemnity the Authority is, or is provided likely to become, a party;
39.4.2 where a claim relating to this Contract is made against the Supplier and the Authority is not, and is not likely to become, a party to such claim as a defendant, the Supplier shall not settle or compromise any such claim exceeding £10,000 (ten thousand pounds) without prior consultation with the Authority; and
39.4.3 it shall ensure that its Sub-contractors give undertakings identical to those given by the Supplier to the Authority under this Clause 39.
39.5 If conduct of a claim is assumed by the Authority pursuant to ARTICLE 11this Clause 39, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or Supplier may be entitled to indemnification recover from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by Authority any relevant insurers (without prejudice to Section 11.3(f); and
(ii) reasonably incurred Losses which either the Supplier providing the party entitled to indemnification with a secured indemnity to or its reasonable satisfaction against all costs and expenses (including legal expenses) that it may insurers incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take Authority's conduct of any defence, dispute, compromise, or appeal of the claim and any settlement of any incidental negotiations; provided that the person entitled to indemnification shall give relevant claim or judgment being given if the Supplier (provided at settlement is made without the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
's consent (b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 4 contracts
Sources: Agreement Relating to Community Accommodation Service – Tier 3 (Cas3), Agreement Relating to Community Accommodation Service – Tier 3, Agreement Relating to Community Accommodation Service – Tier 3 (Cas3)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from 12.11.1 When a person (“Indemnified Person”) has the benefit of an Indemnity in respect of which an indemnity is provided by the Supplier any Claim pursuant to ARTICLE 11the Contract, the following provisions shall apply:
Indemnified Person must give written notice to the Party giving the Indemnity (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only“Indemnifying Party”) of the liability arising out of a claimnature and, such person entitled to indemnification may the extent reasonably known at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such actiontime, permit or require the Supplier to dispute the claim on behalf quantum of the person entitled to indemnification at Claim as soon as reasonably practicable after the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal commencement of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under Claim. No such Claim shall be settled without the indemnityapproval of the Indemnifying Party. After it has been notified of any such Claim, the person entitled Indemnifying Party shall assume the defense thereof, at its sole expense.
12.11.2 The Indemnified Person must provide reasonable information and documentation relating to indemnification shall forthwith repay such Claim to the Supplier whichever Indemnifying Party on a continuing basis.
12.11.3 Upon service of a notice by the Indemnified Person, the Indemnifying Party must defend any Claim on behalf of the Indemnified Person and the Indemnified Person must, at the Indemnifying Party’s cost, do all things reasonably necessary to assist the Indemnifying Party to defend, settle, or mitigate such Claim. Each applicable member of Company Group shall have the right, at its discretion, to select or approve the counsel to be engaged by Contractor to defend such member. Without prejudicing its right to the defense obligations set out in this Article 12.11.3, an Indemnified Person may participate, at its own expense, in its defense conducted by the Indemnifying Party.
12.11.4 Except when a Claim by an Indemnified Person, or the quantum of any such Claim, is the lesser of:
(i) an amount equal to the sum recovered (or the value subject of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred a bona fide dispute by the person entitled to indemnification in recovering Indemnifying Party, the same; and
(ii) Indemnifying Party must pay the amount paid to the person entitled to indemnification by the Supplier Indemnified Person in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part Claim within 30 days of a demand for payment of the person entitled to indemnification to pursue such recovery and that Claim.
12.11.5 When a Claim by an Indemnified Person is the Supplier is repaid only subject of a bona fide dispute by the Indemnifying Party, the Indemnifying Party must pay to the extent that Indemnified Person the undisputed amount within 30 days of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification a demand for payment of the requirements Claim and the remainder within 30 days of any insurer who may have an obligation to provide an indemnity in respect the resolution of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; anddispute.
(g) any person entitled to an indemnity from the Supplier 12.11.6 An Indemnified Person must take do all reasonable measures things reasonably necessary to mitigate any loss, damage or liability that it may suffer in respect of any such matterClaim.
Appears in 3 contracts
Sources: Services Agreement, Services Agreement, Services Agreement
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnified own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within 10 Working Days of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Supplier or the Supplier Party are the Beneficiary and the conduct of which the Commissioner or Supplier acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Supplier or the Supplier Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 3 contracts
Sources: Supply Agreement, Occupational Health Services Agreement, Employment Law Services Agreement
Conduct of Claims. In 40.1 The Supplier agrees (and shall procure that its Sub-contractors agree) that the event Authority has the sole right, on giving written notice to such effect to the Supplier at any time, to control of any claims, statutory fees, costs, charges, penalties proceedings in relation to any Third Party Claim (including without limitation any legal costsclaim by employees of the either the Authority or the Supplier), contributionsregardless of whether the Supplier (or any Sub-contractor) is also a party to such proceedings.
40.2 The Authority agrees that it shall not settle or compromise any Third Party Claim giving rise to losses exceeding ten thousand pounds (£10,000) for which the Supplier is liable to indemnify or compensate the Authority under this Contract without prior consultation with the Supplier. The Authority shall keep the Supplier reasonably informed as to the progress and status of any such Third Party Claim until such Third Party Claim is settled or withdrawn.
40.3 If, compensationsin contesting, cost recoveriessettling or compromising any Third Party Claim, expenses the Authority takes or fines being levied fails to take any action which prejudices any entitlement of the Supplier to recover any portion of the claim from any insurer under any insurance policy maintained by the Supplier in accordance with this Contract, the liability of the Supplier to indemnify or claimed from a person compensate the Authority in respect of such claim shall be reduced by such portion.
40.4 The Supplier undertakes that:
40.4.1 it shall not, without the Approval of the Authority, settle or compromise any claim (whether insured or uninsured) to which an indemnity the Authority is, or is provided likely to become, a party;
40.4.2 where a claim relating to this Contract is made against the Supplier and the Authority is not, and is not likely to become, a party to such claim as a defendant, the Supplier shall not settle or compromise any such claim exceeding ten thousand pounds (£10,000) without prior consultation with the Authority; and
40.4.3 it shall ensure that its Sub-contractors give undertakings identical to those given by the Supplier to the Authority under this Clause 40 (Conduct of Claims).
40.5 If conduct of a claim is assumed by the Authority pursuant to ARTICLE 11this Clause 40 (Conduct of Claims), the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or Supplier may be entitled to indemnification recover from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by Authority any relevant insurers (without prejudice to Section 11.3(f); and
(ii) reasonably incurred Losses which either the Supplier providing the party entitled to indemnification with a secured indemnity to or its reasonable satisfaction against all costs and expenses (including legal expenses) that it may insurers incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take Authority's conduct of any defence, dispute, compromise, or appeal of the claim and any settlement of any incidental negotiations; provided that the person entitled to indemnification shall give relevant claim or judgment being given if the Supplier (provided at settlement is made without the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
's consent (b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 3 contracts
Sources: Agreement Relating to Community Accommodation Service – Tier 3 (Cas3), Agreement Relating to Community Accommodation Service – Tier 3 (Cas3), Community Accommodation Service Agreement
Conduct of Claims. In The provisions of this clause 11.5 shall apply to the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed conduct by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the Beneficiary and the party giving the indemnity is referred to as the Indemnifier. If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same. Subject to sub-clauses (c), (d) and (e) below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
sub-clause (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) with . With respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
sub-clause (ib) above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification . The Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(asub-clause (b); or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under sub-clause (a) or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(bsub-clause (c);
(d) the person entitled to indemnification pursuant to ARTICLE 11 . The Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(asub-clause (b) applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this sub-clause (e), then the Indemnifier shall be released from any liability under its indemnity under clause 11.3 or clause 11.4 (as the case may be) if and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to sub-clause (b) in respect of such claim. If the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that PROVIDED THAT there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier). Any person entitled taking any of the steps contemplated by sub-clauses (a) to indemnification;
(fd) the Supplier (inclusive) shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of clause 17.19 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not extend to Direct Losses which could have been reduced or avoided by the Beneficiary complying with the provisions of such clause.
Appears in 2 contracts
Sources: Strategic Partnering Agreement, Strategic Partnering Agreement
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action or claim shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Issuer under this Clause 5, the following provisions relevant Indemnified Person shall apply:promptly notify the Issuer in writing of such fact, but failure to do so will not relieve the Issuer from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement except, in the case of an unreasonable delay to notify the Issuer by such Indemnified Person, to the extent that such delay actually and materially prejudices the Issuer.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval at reasonable intervals keep the Issuer informed of the progress of the claim or action;
(ii) provide the Issuer with copies of such documentation relating to the claim or action as the Indemnified Person may reasonably request; and
(iii) maintain reasonable consultation with the Issuer regarding decisions concerning the claim or action, subject in each case to the Indemnified Person being indemnified and secured to its reasonable satisfaction against all Losses incurred by it in consequence of its compliance with this Clause 5, and provided that nothing in this Clause 5 shall:
(A) require any Indemnified Person to provide the Issuer with a copy of any part of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or to be privileged whether in the context of any litigation connected with the claim or otherwise; or
(B) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Issuer considers might, either prejudice any insurance cover to which it or any other Indemnified Person may from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing of such Indemnified Person or of any other Indemnified Person.
(c) The Issuer may participate at its own expense in the defence of any such action; provided, however, that legal advisers to the Issuer shall not (except with the consent of the relevant Indemnified Person (such consent not to be unreasonably withheld, conditioned or delayed)) also be legal advisers to the Indemnified Person.
(d) The Issuer shall not, without the prior written consent of the relevant Indemnified Person (such consent not to be unreasonably withheld, conditioned or delayed), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any relevant insurers governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Clause 5 (without prejudice to Section 11.3(fwhether or not the Indemnified Person(s) are actual or potential parties thereto), unless such settlement, compromise or consent:
(i) includes an unconditional release of each Indemnified Person from all liability arising out of such litigation, investigation, proceeding or claim; and
(ii) the Supplier providing the party entitled does not include a statement as to indemnification with or an admission of fault, culpability or a secured indemnity failure to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur act by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Nyxoah SA), Subscription Agreement (Nyxoah SA)
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action or claim shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Issuer under this Clause 6, the following provisions relevant Indemnified Person shall apply:as soon as reasonably practicable notify the Issuer in writing of such fact, but failure to do so will not relieve the Issuer from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval at reasonable intervals keep the Issuer informed of the progress of the claim or action;
(ii) provide the Issuer with copies of such documentation relating to the claim or action as the Indemnified Person may reasonably request; and
(iii) maintain reasonable consultation with the Issuer regarding decisions concerning the claim or action, subject in each case to the Indemnified Person being indemnified, held harmless and secured to its reasonable satisfaction against all Losses incurred by it in consequence of its compliance with this Clause 6, and provided that nothing in this Clause 6 shall:
(A) require any Indemnified Person to provide the Issuer with a copy of any part of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or to be privileged whether in the context of any litigation connected with the claim or otherwise; or
(B) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Issuer considers might, either prejudice any insurance cover to which it or any other Indemnified Person may from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing, or be detrimental to the business of, such Indemnified Person or of any other Indemnified Person.
(c) The Issuer may participate at its own expense in the defence of any such action; provided, however, that legal advisers to the Issuer shall not (except with the consent of the relevant Indemnified Person) also be legal advisers to the Indemnified Person.
(d) The Issuer shall not, without the prior written consent of the relevant Indemnified Person, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any relevant insurers governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Clause 6 (without prejudice to Section 11.3(fwhether or not the Indemnified Person(s) are actual or potential parties thereto), unless such settlement, compromise or consent:
(i) includes an unconditional release of each Indemnified Person from all liability arising out of such litigation, investigation, proceeding or claim; and
(ii) the Supplier providing the party entitled does not include a statement as to indemnification with or an admission of fault, culpability or a secured indemnity failure to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur act by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 2 contracts
Sources: Subscription Agreement (Lifezone Metals LTD), Subscription Agreement (Lifezone Metals LTD)
Conduct of Claims. In 7.1 Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Director and to direct the conduct of the Director in the defence of any claimsClaims.
7.2 Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of a Director provided that:
(a) subject the Director shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Director refuses the engagement of Nominated Counsel to defend the Claim on his behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the director at his own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Director in respect of Personal Counsel Costs unless:
(A) the Director’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Director has reasonably determined that there may be a conflict of interest between the Director and the Company in the defence of a Claim, in which case then the Director shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Director shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3 In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Director:
(a) the Company shall not be liable to indemnification at the SupplierDirector under this Deed or otherwise for any legal expenses subsequently directly incurred by the Director in connection with the Director’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Director shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Director is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him; andor
(iii) in connection with an application for relief which is refused, and any such amounts shall fall to be repaid not later than:
(iv) in the Supplier event of the Director being convicted in the proceedings, the date when the conviction becomes final; or
(v) in the event of judgment being given against the Director in the proceedings, the date when the judgment becomes final; or
(vi) in the event of the Court refusing to grant the Director relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4 The Director shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 2 contracts
Sources: Deed of Indemnity (DTZ Jersey Holdings LTD), Deed of Indemnity (Oxford Immunotec Global PLC)
Conduct of Claims. In 7.1 If the event Purchaser becomes aware of any claimsfact, statutory feesmatter or circumstance that may result in a Claim, costsIndirect Interest Holder Claim or Interim Covenant Claim, chargesthe Purchaser shall as soon as reasonably practicable give notice to the Primary Indirect Interest Holders of such information as is reasonably available to the Purchaser to enable the Primary Indirect Interest Holders to assess the merits of the potential claim. No failure by the Purchaser to comply with the provisions of this paragraph 7.1 shall limit the liability of the Primary Indirect Interest Holders to the Purchaser under this Agreement (or the ability of the Purchaser to make a Claim, penalties (including without limitation any legal costsIndirect Interest Holder Claim or Interim Covenant Claim), contributionsexcept to the extent that the amount of the Claim, compensationsIndirect Interest Holder Claim or Interim Covenant Claim is increased as a result of such failure (but then only with respect to such increase).
7.2 If the fact, cost recoveriesmatter or circumstance that gives rise to a Claim, expenses Indirect Interest Holder Claim or fines being levied Interim Covenant Claim is a result of or claimed from in connection with a person in respect claim by a third party (a “Third Party Claim”) then, without prejudice to the rights of which an indemnity is provided by the Supplier pursuant insurers of the Purchaser’s Group and subject to ARTICLE 11, the following provisions shall applyrights of Chartis Europe Limited under the Warranty and Indemnity Insurance Policy:
(a) subject the Purchaser shall, as far as reasonably practicable, consult with the Primary Indirect Interest Holders before taking any action in relation to Sections 11.3(b), 11.3(cthe Third Party Claim;
(b) and 11.3(d), where it appears that a person is no admissions in relation to the Third Party Claim shall be made by or may be entitled to indemnification from the Supplier in respect of all (but not part only) on behalf of the liability arising out Purchaser or any member of a claimthe Purchaser’s Group and the Third Party Claim shall not be compromised, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (disposed of or settled without prejudice to Section 11.3(f)the consent of the Primary Indirect Interest Holders; and
(iic) subject to the Supplier providing Primary Indirect Interest Holders indemnifying the party entitled to indemnification with a secured indemnity to its reasonable satisfaction Purchaser or other members of the Purchaser’s Group concerned against all costs and expenses (including legal and professional costs and expenses) that it may incur by reason of such actionbe incurred thereby the Purchaser shall, permit or require the Supplier to dispute the claim on behalf Purchaser shall procure that any members of the person entitled Purchaser’s Group shall, take such action as a Primary Indirect Interest Holder may reasonably request to indemnification at the Supplier’s own expense and take conduct of any defenceavoid, dispute, compromisedeny, defend, resist, appeal, compromise or appeal of contest the claim and of any incidental negotiations; Third Party Claim, always provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):that:
(i) where one or more Primary Indirect Interest Holder requests action to be taken which, in the Supplier Purchaser’s reasonable opinion, conflicts with a request received by the Purchaser from another Primary Indirect Interest Holder, (A) the Purchaser shall keep notify the person entitled to indemnification fully informed and consult with it about material elements Primary Indirect Interest Holders in writing as soon as reasonably practicable that, in its reasonable opinion, such requests conflict (including reasonable particulars of the conduct conflict); and (B) the Purchaser shall be under no obligation to take any such action except to the extent jointly agreed by the Primary Indirect Interest Holders who provided the conflicting requests (such joint agreement to be confirmed to the Purchaser in writing, with a copy to each Primary Indirect Interest Holder). Without affecting the Purchaser’s rights or obligations hereunder, a Primary Indirect Interest Holder who makes a request for action under this paragraph 7.2(c) shall promptly notify the other Primary Indirect Interest Holders of the claimsame in writing and provide them with written details of such request;
(ii) any other Warrantor shall reimburse the Supplier shall not bring Primary Indirect Interest Holders their Indirect Interest Holder Warranty Proportion (or in respect of an Interim Covenant Claim, their Indirect Interest Holder Adjustment Proportion) of any amounts paid under the name aforementioned indemnity but only to the extent that the Warrantors liability in respect of the person entitled Claim or Interim Covenant Claim in question is less than its liability would have been in respect of the Third Party Claim as asserted, taking into account for this purpose legal costs that the Purchaser’s Group might reasonably be expected to indemnification have incurred in dealing with such Third Party Claim absent any request by the Primary Indirect Interest Holders pursuant to this paragraph 7.2 (or any Group Member thereof) into disreputec); and
(iii) any obligation of the Supplier Managers to reimburse the Primary Indirect Interest Holders under this paragraph 7.2(c) shall be limited to and discharged only from payments (if any) due and payable to the Managers from the Warranty Escrow Account under Clause 9.2, provided further that the Purchaser shall not pay in any circumstances be subject to any obligation or settle such claims without liability whatsoever with respect to the prior consent provisions of paragraphs 7.2(c)(ii) and (iii) except as provided in Clauses 9 and 10.
7.3 Notwithstanding paragraph 7.2, neither the Purchaser nor any member of the person entitled Purchaser’s Group shall be required to indemnificationtake any action or refrain from taking any action, if the Purchaser or other member of the Purchaser’s Group concerned reasonably considers such consent not action or omission to be unreasonably withheld materially prejudicial to it or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled tobusiness, would be misleading or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply inaccurate in any material respect with or would materially affect the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled future liability to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct Tax of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value member of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterPurchaser’s Group.
Appears in 2 contracts
Sources: Deed of Modification and Withdrawal From Escrow Accounts, Spa Deed of Modification and Withdrawal From Escrow Accounts (Watson Pharmaceuticals Inc)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject If either party (the "Recipient") becomes aware of any third party claim against the Recipient which may result in a claim by the Recipient against the other party (the "Indemnifying Party") under any indemnity contained in this Contract, the Recipient shall give notice to Sections 11.3(b), 11.3(cthe Indemnifying Party as soon as is reasonably practicable thereafter together with a written summary of the third party claim and any relevant supporting documentation.
(b) and 11.3(d), where it appears that a person is or may The Indemnifying Party shall be entitled to indemnification from the Supplier in respect of all at its discretion (but not part onlyafter consultation with the Recipient) to defend, at the Indemnifying Party 's own expense, such claim on behalf of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toRecipient provided that:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification Recipient shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification be kept fully informed and consult with it about material elements of the conduct of all key matters pertaining to the claim;
(ii) the Supplier shall not bring Indemnifying Party shall, in resisting any such claim, comply with the name terms of the person entitled to indemnification (or any Group Member thereof) into disrepute; andrelevant policies of insurance;
(iii) the Supplier Indemnifying Party shall not pay or settle such claims without the prior consent of the person be entitled to indemnificationresist any such claim before any court unless it has been advised by leading counsel, after consideration of all the available relevant information and documents, that it is reasonable to resist such consent not claim in the manner proposed by the Indemnifying Party; and
(iv) the Indemnifying Party agrees in writing to indemnify the Recipient (to the Recipient's reasonable satisfaction) against all relevant losses (including costs, damages and expenses) which may thereby be unreasonably withheld or delayed;incurred.
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim The Recipient agrees in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time writing to give notice to the Supplier that it is retaining or taking over (as Indemnifying Party and the case may be) the conduct insurer under a relevant policy of any defenceinsurance, disputeif any, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes purpose of considering properly defending and resisting counterclaiming against such claim;a claim subject as provided in clause 12.3(b)(iv).
(ed) if If the Supplier pays Indemnifying Party does not request the Recipient to take any appropriate action or fails to agree in writing to indemnify the Recipient to its reasonable satisfaction within twenty (20) Business Days of the Recipient's notice under clause 12.3(a), the Recipient shall be free to pay or settle the claim on such terms as it may in its absolute discretion think fit. The Recipient shall make no admission prejudicial to the person defence of such claim unless and until it becomes entitled to indemnification an amount in respect of an indemnity and the person entitled pay or settle such claim pursuant to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterclause 12.3(d).
Appears in 2 contracts
Sources: Sponsorship Agreement, Sponsorship Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval Whenever a claim for indemnification shall arise under this Section 18 as a result of a third party claim, the party seeking indemnification (the "Indemnified Party"), shall notify the party from whom such indemnification is sought (the "Indemnifying Party") in writing of the Proceeding and the facts constituting the basis for such claim in reasonable detail; provided, that the Indemnified Party shall not be foreclosed by any relevant insurers (without prejudice failure to Section 11.3(f); and
(ii) provide timely notice of the Supplier providing existence of a third party claim to the party entitled Indemnifying Party except to indemnification with the extent that the Indemnifying Party has been materially prejudiced as a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason direct result of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claimdelay;
(ii) Such Indemnifying Party shall have the Supplier right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided, however, that counsel to the Indemnifying Party shall not bring (except with the name consent of the person entitled relevant Indemnified Party) also be counsel to indemnification such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or any Group Member thereof) into disreputeseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; and
(iii) the Supplier shall not pay or settle such claims No Indemnifying Party shall, without the prior written consent of the person entitled to indemnification, such Indemnified Parties (which consent shall not to be unreasonably withheld withheld), settle or delayed;
(c) a person entitled compromise or consent to indemnification shall be free the entry of any judgment with respect to pay any litigation, or settle any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim on such terms as it thinks fit (and without prejudice to its rights and remedies whatsoever in respect of which indemnification could be sought under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute18 unless such settlement, compromise or appeal consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 2 contracts
Sources: Purchase Agreement (Ants Software Inc), Purchase Agreement (Ants Software Inc)
Conduct of Claims. In the (i) As soon as reasonably practicable and in any event within twenty (20) Business Days after becoming aware of circumstances giving rise or likely to give rise to any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person claim made in respect of which an indemnity is provided indemnified matter under this § 21.6 ("Claim"), the non-defaulting Party ("Indemnity Claiming Party") shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Supplier pursuant Indemnity Claiming Party to ARTICLE 11, enable it to understand the following provisions shall apply:
(a) subject grounds upon which the Claim is likely to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); andbased.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Supplier Indemnity Defaulting Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) above, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i), the Indemnity Defaulting Party shall, subject to providing the party entitled to indemnification Indemnity Claiming Party with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such actionaction or proceeding, permit or require the Supplier be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Indemnified Person at the Supplier’s Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim Claim and of any incidental negotiations; provided that the person entitled to indemnification . The Indemnity Claiming Party shall give the Supplier (provided at the Supplier’s cost) Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(biii) with With respect to any claim Claim conducted by the Supplier Indemnity Defaulting Party pursuant to Section 11.3(a§ 21.6(c)(ii):
(iI) the Supplier Indemnity Defaulting Party shall keep the person entitled to indemnification Indemnity Claiming Party fully informed and consult with it about material elements (including the making of any payment or settlement) of the conduct of the claimClaim;
(iiII) the Supplier Indemnity Defaulting Party shall not bring the name of the person entitled Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant to indemnification such Claim advised by skilled and experienced counsel; or
(b) statements made by the Indemnity Defaulting Party regarding (other than to the extent that any such statements regarding the Buyer are established as a matter of fact), or any Group Member thereof) into disreputeon behalf of, the Indemnity Claiming Party; and
(iiiIII) the Supplier Indemnity Defaulting Party shall not pay or settle such claims admit any liability in respect of a Claim without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;Indemnity Claiming Party.
(civ) a person entitled to indemnification The Indemnity Claiming Party shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(iI) the Supplier Indemnity Defaulting Party is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a§ 21.6(c)(ii);
(II) the Indemnity Defaulting Party fails to notify the Indemnity Claiming Party of its intention to take conduct of the relevant Claim within twenty (20) Business Days of the notice from the Indemnity Claiming Party under § 21.6(c)(i) above or notifies the Indemnity Claiming Party that it does not intend to take conduct of the Claim; and
(III) the Indemnity Defaulting Party fails to comply with any provision of this § 21.6(c) which materially:
(a) increases the liability or exposure of the Indemnity Claiming Party to the relevant Claim; or
(iib) prejudices the Supplier fails to comply Indemnity Claiming Party's position in any material respect with defending the provisions of Sections 11.3(a) or 11.3(b);relevant Claim.
(dv) the person entitled to indemnification pursuant to ARTICLE 11 The Indemnity Claiming Party shall be free at any time to give notice to the Supplier Indemnity Defaulting Party that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim Claim (or of any incidental negotiations) to which Section 11.3(a§ 21.6(c)(ii) applies. On receipt of such notice the Supplier Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such claim Claim to the person entitled to indemnificationIndemnity Claiming Party, and shall provide to the person entitled to indemnification Indemnity Claiming Party all reasonable co- operationcooperation, access and assistance for the purposes of considering and resisting such claim;.
(evi) if If the Supplier Indemnity Claiming Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released from any liability under any indemnity under this Agreement in respect of such Claim, subject to:
(I) the Indemnity Defaulting Party paying the costs or expenses of the Indemnity Claiming Party, which were incurred by the Indemnity Claiming Party in connection with the Claim prior to the date on which the Indemnity Claiming Party gives any notice pursuant to § 21.6(c)(v); and
(II) the Indemnity Defaulting Party remaining liable for the finally agreed or determined amount of losses, costs, charges, expenses and other liabilities arising in relation to such Claim but excluding therefrom any agreed or determined amount to the extent that it has been materially increased by reason of the Indemnity Claiming Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant to such Claim advised by skilled and experienced counsel.
(vii) If the Indemnity Defaulting Party pays to the person entitled to indemnification Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the person entitled to indemnification subsequently Indemnity Claiming Party separately recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim Claim under the indemnity, the person entitled to indemnification Indemnity Claiming Party shall forthwith as soon as reasonably practicable repay to the Supplier whichever is Indemnity Defaulting Party the lesser of:
(iI) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any reasonable out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Indemnity Claiming Party in recovering the same; and
(iiII) the amount paid to the person entitled to indemnification Indemnity Claiming Party by the Supplier Indemnity Defaulting Party in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.indemnity.
Appears in 2 contracts
Sources: Individual Power Purchase Agreement, Individual Power Purchase Agreement
Conduct of Claims. 12.1 This clause 12 shall apply to the conduct, by a party from whom an indemnity is sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. Accordingly:
12.2 In the event that the Beneficiary receives any notice, demand, letter, or other document concerning any claim arising from the discharge the purported discharge or the failure to discharge the Functions or any of them from any claims, statutory fees, costs, charges, penalties third party it shall notify the Indemnifier of the claim as soon as reasonably practicable and in any event within twenty (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect 20) Working Days of which an indemnity is provided by receipt of the Supplier pursuant to ARTICLE 11, the following provisions same.
12.3 The Indemnifier shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled giving to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured Beneficiary an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;.
(b) with 12.4 With respect to any claim conducted by the Supplier indemnifier pursuant to Section 11.3(a):clause 12.3:
(i) 12.4.1 the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) 12.4.2 the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) 12.4.3 the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;.
(c) a person entitled to indemnification 12.5 The Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) 12.5.1 the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 12.3; or
12.5.2 the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Working Days of the Supplier notice from the Beneficiary under clause 12.2; or
12.5.3 the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);clause 12.4.
(d) the person entitled to indemnification pursuant to ARTICLE 11 12.6 The Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) clause 12.3 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Conduct of Claims. In 6.4.1 The Vendor shall have the event right to control all aspects of the defence of (and any counterclaims with respect to) any claims brought against the Purchaser, any member of the Purchaser’s Group or any of the Companies that are covered by the indemnification set forth in Clause 6.1 (Indemnification by the Vendor), including, without limitation, the selection of counsel, determination of whether to appeal any decision of any claimscourt and the settling of any such matter or any issues relating thereto; provided, statutory feeshowever, costs, charges, penalties that no such settlement shall be entered into without the consent (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions consent shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may not be entitled to indemnification from the Supplier in respect of all (but not part onlyunreasonably withheld) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
Purchaser (i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) with the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf concurrence of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal conflicts committee of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s costPurchaser) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with unless it about material elements includes a full release of the conduct Purchaser, any member of the claim;
(ii) the Supplier shall not bring the name Purchaser’s Group and each of the person entitled to indemnification (Companies from such matter or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationissues, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) .
6.4.2 The Purchaser agrees to cooperate fully with the conduct Vendor with respect to all aspects of the defence of any claims covered by the indemnification set forth in Clause 6.2 (Indemnification by the Vendor ), including, without limitation, the prompt furnishing to the Vendor of any correspondence or other notice relating thereto that the Purchaser, any member of the Purchaser’s Group or any of the Companies may receive, permitting the names of such parties to be utilized in connection with such defence, dispute, compromise or appeal the making available to the Vendor of any claim (files, records or other information of such parties that the Vendor considers relevant to such defence and the making available to the Vendor of any incidental negotiations) employees of the Purchaser, any member of the Purchaser’s Group or any of the Companies; provided, however, that in connection therewith the Vendor agrees to which Section 11.3(a) applies. On receipt use reasonable efforts to minimize the impact thereof on the operations of such notice parties and further agrees to maintain the Supplier confidentiality of all files, records and other information furnished by any such party pursuant to this Clause 6.4 (Conduct of claims ).
6.4.3 In no event shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value obligation of the saving or benefit obtainedPurchaser to cooperate with the Vendor as set forth in Clause 6.4 (Conduct of claims ) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by be construed as imposing upon the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have Purchaser an obligation to provide an indemnity hire and pay for counsel in respect connection with the defence of any liability arising under claims covered by the indemnification set forth in this Agreement Clause 6 (Indemnities ); provided, however, that the Purchaser may, at its own option, cost and expense, hire and pay for counsel in relation connection with any such defence.
6.4.4 The Vendor agrees to keep any such counsel hired by the person entitled Purchaser reasonably informed as to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect status of any such matterdefence (including providing such counsel with such information related to any such defence as such counsel may reasonably request) but the Vendor shall have the right to retain sole control over such defence.
Appears in 2 contracts
Sources: Business Purchase Agreement (Teekay Tankers Ltd.), Purchase Agreement (Teekay Tankers Ltd.)
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnified own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within [10 Working Days] of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Supplier or the Supplier Party are the Beneficiary and the conduct of which the Commissioner or Supplier acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Supplier or the Supplier Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 2 contracts
Sources: Office Cleaning Services Agreement, Agreement Relating to the Supply of Media Monitoring Services
Conduct of Claims. In (a) Within thirty (30) days after the event party to be indemnified receiving a notice of commencement of any claimsaction or the assertion in writing of any claim by a third party which the party to be indemnified receives notice will give rise to a right to be indemnified under this Section 9, statutory feesthe party to be indemnified shall give the Company written notice thereof together with a copy of such claim, costsprocess or other legal pleading (provided, chargeshowever, penalties (including without limitation any legal coststhat failure to give such notice shall not affect the obligations of the Company under this Section 9 unless and to the extent that such failure shall be prejudicial to the defense of such claim by the Company), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person and the Company shall have the right to undertake the defense thereof by representatives of its own choosing subject to indemnifying and securing the Purchaser in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification any Damages resulting from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claimdefense;
(b) with respect to any claim conducted in the event that the Company, by the Supplier pursuant 30th day after receipt of notice of any such claim (or, if earlier, by the 20th day preceding the day on which an answer or other pleading must be served in order to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name prevent judgment by default in favor of the person entitled asserting such claim), does not elect to indemnification defend against such claim, the party to be indemnified will (upon further notice to the Company) have the right to undertake the defense, compromise or any Group Member thereof) into disrepute; and
(iii) settlement of such claim on behalf of and for the Supplier shall not pay or settle such claims without the prior consent account and risk of the person entitled to indemnification, such consent not to be unreasonably withheld or delayedCompany;
(c) a person entitled anything in this Section 9.2 to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
the contrary notwithstanding, (i) the Supplier is Company shall not entitled to, consent to entry of any judgment or is not permitted enter into any settlement or instructed, take conduct compromise with respect to a claim without the consent of the claim in accordance with Section 11.3(a); or
party to be indemnified, and (ii) no party to be indemnified shall consent to entry of any judgment or enter into any settlement or compromise of any such action the Supplier fails to comply in any material respect with defense of which has been assumed by the provisions Company without the consent of Sections 11.3(a) or 11.3(b);the Company, which consent shall not be unreasonably withheld; and
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at in connection with any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification indemnified party will cooperate with all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value requests of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, Company provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery indemnified party is indemnified and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with secured against any sum recovered Damages resulting from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterso co-operating.
Appears in 2 contracts
Sources: Series a 3 Preferred Stock Purchase Agreement, Series a 3 Preferred Stock Purchase Agreement (EPAM Systems, Inc.)
Conduct of Claims. In 9.1 If the event Buyer becomes aware of any claimsfact, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses matter or fines being levied circumstance which could give rise to a claim under the Warranties or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE under clause 11, the Buyer shall give notice of such fact, matter or circumstance to the Seller as soon as reasonably practicable within a reasonable period following provisions shall applybecoming aware of any such fact, matter or circumstance and that it could be the subject matter of a claim.
9.2 If any claim is made against the Buyer or any member of the Buyer’s Group by any third party which could in turn lead to a claim by the Buyer against the Seller under the Warranties or under clause 11 then the Buyer shall:
(a) give notice of such claim to the Seller as soon as reasonably practicable after the Buyer becomes aware of it and that it could be the subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out matter of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect keep the Seller promptly and fully informed as to the progress of any such claim and shall procure that the Seller are promptly sent copies of all relevant communications and other documents (written or otherwise) transmitted to any claim conducted by the Supplier pursuant other party to Section 11.3(a):
any proceedings or their agents or professional advisers (i) the Supplier shall keep the person entitled including, without limitation, pleadings and any opinion of Counsel relating to indemnification fully informed and consult with it about material elements of the conduct of the claimany proceedings against any third parties);
(iic) subject to the Supplier Buyer and the relevant member of the Buyer’s Group being entitled to employ its own legal advisers and being indemnified and secured to its reasonable satisfaction by the Seller against all liabilities, reasonable costs, reasonable expenses, damages and losses (including, without limitation, the reasonable and proper costs of its legal advisers) suffered or incurred in connection with any such claim, take, and shall not bring procure that each member of the Buyer’s Group shall take, all reasonable steps so as to recover or minimise or resolve such liability or dispute and, upon request by the Seller, permit the Seller to take sole conduct of such actions as the Seller deems appropriate in connection with such claim, in the name of the person entitled Buyer or the relevant member of the Buyer’s Group;
(d) comply with all reasonable requests of the Seller in relation to indemnification such claim including (or any Group Member thereofwithout limitation) into disreputegiving the Seller reasonable access to premises, personnel, documents and records for the purpose of investigating the matters giving rise to such claim; and
(iiie) not (and shall procure that no member of the Supplier shall not Buyer’s Group shall) accept or pay or settle compromise any such claims liability or claim without the prior written consent of the person entitled to indemnification, Seller (such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ); PROVIDED THAT nothing in this paragraph 9.2 shall be free to pay require the Buyer or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct member of the claim in accordance with Section 11.3(a); or
(ii) Buyer’s Group to take or refrain from taking any action which it reasonably considers would materially and adversely affect the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) goodwill or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value bona fide commercial interests of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterBuyer’s Group.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Live Nation Entertainment, Inc.)
Conduct of Claims. In This paragraph shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule (“Claim”), the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within ten (10) Working Days of receipt of the same. Subject to paragraphs 34.4 and 34.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 34.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 34.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 34.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 34.3 above; or
the Indemnifier fails to notify the Beneficiary in writing of its intention to take conduct of the relevant Claim within ten (ii10) Working Days of the Supplier notice from the Beneficiary under paragraph 34.2 above or if the Indemnifier notifies the Beneficiary in writing that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterparagraph 34.4 above.
Appears in 1 contract
Sources: Order Form and Call Off Terms
Conduct of Claims. In This paragraph 11 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule 20, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule 20 (“Claim”), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within ten days of receipt of the same. Subject to paragraphs 11.4 and 11.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 11.2, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 11.5, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 11.3: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 11.3; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within ten days of the notice from the Beneficiary under paragraph 11.2 or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterparagraph 11.4.
Appears in 1 contract
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eSub-hubco Indemnities to Authority) or Clause 49.2 (Authority Indemnities to Sub-hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 49.3.1 to indemnification;
(f) the Supplier 49.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 59 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 59 (Mitigation).
Appears in 1 contract
Sources: Project Agreement
Conduct of Claims. In 22.1 This clause 22.1 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this IAA, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
22.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this IAA, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary;
22.1.2 subject to clauses 22.1.3, 22.1.4 and 22.1.5 below, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 22.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim)) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) 22.1.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):clause 22.1.2 above:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification 22.1.4 the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) IAA if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 22.1.2 above; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 20 Business Days of the notice from the Beneficiary under clause 22.1.2 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.clause
Appears in 1 contract
Sources: Inter Authority Agreement
Conduct of Claims. In (1) Whenever a claim for indemnification shall arise under this Section, the event party seeking indemnification (the "Indemnified Party"), shall notify the party from whom such indemnification is sought (the "Indemnifying Party") in writing of the Proceeding and the facts constituting the basis for such 20 claim in reasonable detail;
(2) Upon delivery of such notice, such Indemnified Party shall have a duty to take all reasonable steps to mitigate any claimslosses, statutory feesliabilities, costs, chargescharges and expenses relating to any such Proceeding;
(3) Such Indemnifying Party shall direct the defense of any such Proceeding, penalties provided, however, that any such Indemnified Party shall have the right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided further, however, that counsel to the Indemnifying Party shall not (including except with the consent of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; and
(4) No Indemnifying Party shall, without limitation any legal coststhe prior written consent to the Indemnified Parties (which consent shall not be unreasonably withheld), contributionssettle or compromise or consent to the entry of any judgment with respect to any litigation, compensationsor any investigation or proceeding by any governmental agency or body, cost recoveriescommenced or threatened, expenses or fines being levied or claimed from a person any claim whatsoever in respect of which indemnification could be sought under this Section unless such settlement, compromise or consent (A) includes an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification unconditional release of each Indemnified Party from the Supplier in respect of all (but not part only) of the liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a claimstatement as to or an admission of fault, such person entitled culpability or a failure to indemnification may at its sole election and subject to:
(i) approval act by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 1 contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) If any Indemnified Person receives notification of the commencement of any Claim relevant for the purposes of this Clause 12, such Indemnified Person shall, insofar as may be consistent with the terms of any relevant insurance policy and provided that to do so would not, in such Indemnified Person’s view be prejudicial to it (or to any Indemnified Person connected to it) or to any obligation of confidentiality or other legal or regulatory obligation which that Indemnified Person owes to any third party or to any regulatory request that has been made of it, and subject to Sections 11.3(b)any restrictions necessary to maintain legal privilege, 11.3(c) and 11.3(d)as soon as reasonably practicable, where it appears notify the Company thereof provided that a person is or may be entitled failure by such Indemnified Person to indemnification notify the Company shall not relieve the Company from the Supplier in respect of all obligations to indemnify under this Clause 12, and provided further that the failure to notify the Company will not relieve the Company from any liability that the Company may have to any Indemnified Person otherwise than under this Clause 12.
(but not part onlyb) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toThe Company agrees that:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that if it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct becomes aware of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance Claim relevant for the purposes of considering this Clause 12 or any matters which would give rise to a Claim, it shall promptly, and resisting to the extent permitted by law and regulation, notify the Joint Global Co-ordinators in writing thereof and shall provide the Joint Global Co-ordinators with such claim;
(b) with respect information and copies of such documents relating to the Claim as any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claimUnderwriters may reasonably request;
(ii) it shall not, and shall procure that each of its affiliates will not, without the Supplier shall not bring the name prior written consent of the person entitled relevant Indemnified Person admit any liability in respect of, settle or compromise, consent to the entry of any judgment with respect to or otherwise seek to terminate, any pending or threatened Claim or action in respect of which indemnification may be sought under this Clause 12 (whether or not any Group Member thereofof the Underwriters is an actual or potential party to such Claim), unless such settlement, compromise or consent:
(A) into disreputeincludes an unconditional release of the Underwriters and other Indemnified Persons from all liability arising out of such Claim; and
(iiiB) the Supplier shall does not pay include a statement as to or settle such claims without the prior consent an admission of the person entitled fault, culpability or failure to indemnification, such consent not to be unreasonably withheld act by or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect behalf of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief Underwriter or any other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Sources: Underwriting Agreement
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action or claim shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Issuer be under this Clause 10, the following provisions relevant Indemnified Person shall apply:promptly notify the Issuer in writing of such fact, but failure to do so will not relieve the Issuer from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval by any relevant insurers at reasonable intervals keep the Issuer informed of the progress of the claim or action;
(without prejudice ii) provide the Issuer with copies of such documentation relating to Section 11.3(f)the claim or action as the Indemnified Party may reasonably request; and
(iiiii) maintain reasonable consultation with the Supplier providing Issuer regarding decisions concerning the party entitled claim or action, subject in each case to indemnification with a the Indemnified Person being indemnified and secured indemnity to its reasonable satisfaction against all costs Losses incurred by it in consequence of its compliance with this Clause 10, and expenses provided that nothing in this Clause 10 shall:
(including legal expensesA) that require any Indemnified Person to provide the Issuer with a copy of any part of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or to be privileged whether in the context of any litigation connected with the claim or otherwise; or
(B) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Issuer reasonably considers might, either prejudice any insurance cover to which it or any other Indemnified Person may incur by reason from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing of such action, permit Indemnified Person or require the Supplier to dispute the claim on behalf of the person entitled to indemnification any other Indemnified Person.
(c) The Issuer may participate at the Supplier’s its own expense and take conduct in the defense of any defencesuch action; provided, disputehowever, compromise, or appeal of that legal advisers to the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier Issuer shall not bring (except with the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled relevant Indemnified Person (such consent not to indemnification, be withheld or delayed)) also be legal advisers to the Indemnified Person. The Issuer shall not be liable in respect of any settlement of any action effected without its consent (such consent not to be unreasonably withheld or delayed;
). The Issuer shall not, without the prior written consent of the relevant Indemnified Person (c) a person entitled such consent not to indemnification shall be free unreasonably withheld or delayed), settle or compromise or consent to pay the entry of any judgment with respect to any litigation, or settle any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim on such terms as it thinks fit (and without prejudice to its rights and remedies whatsoever in respect of which indemnification could be sought under this AgreementClause 10 (whether or not the Indemnified Person(s) ifare actual or potential parties thereto), unless such settlement, compromise or consent:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct includes an unconditional release of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt each Indemnified Person from all liability arising out of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationlitigation, and shall provide to the person entitled to indemnification all reasonable co- operationinvestigation, access and assistance for the purposes of considering and resisting such proceeding or claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid does not include a statement as to the person entitled or an admission of fault, culpability or a failure to indemnification act by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation or on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements behalf of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Sources: Subscription Agreement (Abivax S.A.)
Conduct of Claims. In 15.1.1. This clause 15.1 shall apply to the event of any claims, statutory fees, costs, charges, penalties conduct by a Party from whom an indemnity is sought under this Agreement (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person "the Indemnifier") in respect of which an claims made by a third person against a Party having or claiming to have the benefit of the indemnity is provided ("the Beneficiary") and conduct by the Supplier pursuant Beneficiary in respect of such claims, but shall apply only to ARTICLE 11the extent compatible with the requirements of any relevant insurer.
15.1.2. If the Beneficiary receives any notice, the following provisions shall apply:
(a) subject to Sections 11.3(b)demand, 11.3(c) and 11.3(d), where letter or other document concerning any claim for which it appears that a person is the Beneficiaryis or may be become entitled to indemnification from under this Agreement the Supplier Beneficiary shall give notice in respect of all writing to the Indemnifier within ten (but not part only10) Working Days of the liability arising out receipt by the Beneficiary of a claimsuch notice, such person demand, letter or other document.
15.1.3. Subject to clauses 15.1.2, 15.1.4, 15.1.6 and 15.1.8 and the giving of notice by the Beneficiary, the Indemnifier shall be entitled (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it the Beneficiary may incur by reason of such action, permit or require action within ten (10) Working Days of the Supplier receipt of such notice from the Beneficiary by the Indemnifier) to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring in the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (Beneficiary and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any the claim (or and of any incidental negotiations) . If the Indemnifier so elects to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationclaim, and the Beneficiary shall provide to give the person entitled to indemnification Indemnifier all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such the claim;.
(e) 15.1.4. With respect to any claim conducted by the Indemnifier, the Indemnifier shall keep the Beneficiary fully informed and consult with it about all material elements of the conduct of the claim and shall not bring the name of the Beneficiary into disrepute.
15.1.5. If the Indemnifier does not elect under clause 15.1.3 to take conduct of a claim or if the Supplier Indemnifier and the Beneficiary at any time agree that the Beneficiary should henceforth have conduct of the claim, then the Beneficiary shall be entitled to conduct the claim and to resist, appeal, compromise or settle the claim. With respect to any claim conducted by the Beneficiary, the Beneficiary shall keep the Indemnifier fully informed and consult with it about all material elements of the claim.
15.1.6. Any Party who is under an obligation to consult with another Party under clause 15.1.4 or clause 15.1.5 shall have regard in good faith to any views expressed by the other Party.
15.1.7. If the Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matterevent, event matter or circumstances giving rise raise to the claim under the indemnity, then the person entitled to indemnification Beneficiary shall forthwith repay pay to the Supplier Indemnifier whichever is the lesser of:
(i) an of the amount equal to paid by the Indemnifier or the sum recovered (or by the value Beneficiary.
15.1.8. Any Party taking any of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled steps mentioned in clauses 15.1.1 to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there 15.1.7 shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated comply with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer insurer, who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such of the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnifier.
Appears in 1 contract
Sources: Delegation Agreement
Conduct of Claims. In (1) Whenever a claim for indemnification shall arise under this Section, the event party seeking indemnification (the "Indemnified Party"), shall notify the party from whom such indemnification is sought (the "Indemnifying Party") in writing of the Proceeding and the facts constituting the basis for such claim in reasonable detail;
(2) Upon delivery of such notice, such Indemnified Party shall have a duty to take all reasonable steps to mitigate any claimslosses, statutory feesliabilities, costs, chargescharges and expenses relating to any such Proceeding;
(3) Such Indemnifying Party shall have the right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided, penalties however, that counsel to the Indemnifying Party shall not -------- ------- (including except with the consent of the rele vant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; and
(4) No Indemnifying Party shall, without limitation any legal coststhe prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), contributionssettle or compromise or consent to the entry of any judgment with respect to any litigation, compensationsor any investigation or proceeding by any governmental agency or body, cost recoveriescommenced or threatened, expenses or fines being levied or claimed from a person any claim whatsoever in respect of which indemnification could be sought under this Section unless such settlement, compromise or consent (A) includes an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification unconditional release of each Indemnified Party from the Supplier in respect of all (but not part only) of the liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a claimstatement as to or an admission of fault, such person entitled culpability or a failure to indemnification may at its sole election and subject to:
(i) approval act by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 1 contract
Conduct of Claims. In the event 8.6.1 If either Purchaser becomes aware of any claimsmatter that may give rise to a claim against EFPL under the Transaction Documents, statutory fees, costs, charges, penalties notice of that fact (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) together with details of the liability arising out matter in question as are available) shall be given within 10 Business Days to EFPL.
8.6.2 Without prejudice to the validity of a claim, such person entitled to indemnification may at its sole election and subject tothe claim or alleged claim in question:
(i) approval by each Purchaser shall allow, and shall procure that any relevant insurers (without prejudice member of its Group allows, EFPL and its duly authorised agents to Section 11.3(f)investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such claim; and
(ii) in connection with the Supplier providing the party entitled actions referred to indemnification with a secured indemnity to in Clause 8.6.2(i), each Purchaser shall (at its reasonable satisfaction against all costs and expenses (including legal expensesown expense) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromisemake, or appeal procure to be made, available to EFPL or its duly authorised agents on reasonable notice during normal business hours all relevant books of account, records and correspondence relating to the claim Business (and shall permit EFPL to take copies of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s costthose documents) all reasonable cooperation, access and assistance for the purposes of considering and resisting such enabling EFPL to ascertain or extract any information relevant to the claim;, save always that neither Purchaser shall be required to make available or provide copies of commercially confidential or legally privileged books of account, records, correspondence or other information.
8.6.3 If the claim in question is a result of or in connection with a claim by or liability to a third party (bincluding a Taxation Authority or in respect of Taxation) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):then:
(i) no admission of liability shall be made by or on behalf of a Purchaser or any member of its Group and the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier claim shall not bring be compromised, disposed of or settled and no matter which may affect the name outcome of the person entitled any dispute or negotiation with any Taxation Authority in relation to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier a claim for Taxation shall not pay or settle such claims be agreed, in each case without the prior written consent of the person entitled to indemnification, EFPL such consent not to be unreasonably withheld or delayeddelayed where the relevant Purchaser is required to comply with an order, regulatory award or ruling of any Competent Authority;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) EFPL shall be entitled in its absolute discretion to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, postpone, settle, compromise or contest such claim or liability or any adjudication in respect of such claim (including making counterclaims or other claims against third parties) in the Supplier fails to comply in any material respect with name of and on behalf of the provisions Purchasers (or either of Sections 11.3(athem) or 11.3(b);
(d) any member of the person entitled Purchasers' Group concerned and to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) have the conduct of any defencerelated proceedings, dispute, compromise negotiations or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameappeals; and
(iiiii) each Purchaser shall, and will procure that any relevant member of its Group shall, take all such action and give all such information, documentation and assistance, including access to premises and personnel, copies of any relevant correspondence and the amount paid right to examine and copy or photograph any assets, accounts, documents, books and records, for the person entitled to indemnification by the Supplier in respect purpose of the claim under the relevant indemnityavoiding, provided disputing, denying, defending, resisting, appealing, postponing, settling, compromising or contesting any such claim, liability or adjudication as EFPL or its professional advisers request save always that there neither Purchaser shall be no obligation on the part required to make available or provide copies of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount commercially confidential or legally privileged books of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any lossaccount, damage records, correspondence or liability that it may suffer in respect of any such matterother information.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Edison Mission Energy)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or and 11.3(b)) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) above applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Standing Offer Agreement for Lease/Rental of Heavy Duty Equipment
Conduct of Claims. In 19.1 This clause 19.1 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this IAA, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
19.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this IAA, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary;
19.1.2 subject to clauses 19.1.3, 19.1.4 and 19.1.5 below, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 19.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim)) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays 19.1.3 with respect to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the any claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred conducted by the person entitled Indemnifier pursuant to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.clause
Appears in 1 contract
Sources: Inter Authority Agreement
Conduct of Claims. In This sub‑clause shall apply to the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed conduct by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 16.3.3, 16.3.4 and 16.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 16.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 16.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 16.3.2 above; or
or the Indemnifier fails to notify the Beneficiary in writing of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 16.3.1 above or notifies the Beneficiary in writing that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 16.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice in writing to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 16.3.2 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice in writing pursuant to this paragraph, then the Indemnifier shall be released from any liability under its indemnity under Clause 16.1 or Clause 16.2 (eas the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 16.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that PROVIDED THAT there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier is Indemnifier shall be repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the person entitled to indemnification;
Beneficiary (f) the Supplier shall inform the person entitled to indemnification including for this purpose indirect or consequential losses or claims for loss of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under profits which are excluded by this Agreement and in relation to such from being recovered from the person entitled to indemnification shall issue instructions accordinglyIndemnifier); and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Territory Partnering Agreement
Conduct of Claims. In 9.1 If anything comes to the event notice of the Purchasers by reason or in consequence of which the Seller may be liable to make payment to the Purchasers pursuant to this Agreement under the Warranties or clause 6:
9.1.1 the Purchasers shall procure that notice of such claim is given to the Seller within a period of 20 Business Days following any Purchaser becoming aware of such matter;
9.1.2 without prejudice to the validity of the claim or alleged claim in question, the Purchasers shall give all such material information and assistance, subject to being given reasonable notice and being paid all reasonable costs and expenses and subject to any existing confidentiality obligations of the Purchasers, access to premises and personnel and the right to examine and copy or photograph any assets, accounts, documents and records, as the Seller or its accountants or professional advisers may reasonably request and shall keep the Seller informed of any claimsdevelopments, statutory feesor documents received, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses in relation to such claim or fines being levied alleged claim; and
9.1.3 where the claim in question is as a result of or claimed from in connection with a person in respect of which an indemnity is provided claim by the Supplier pursuant or liability to ARTICLE 11a third party, the following provisions shall applyPurchasers:
(a) subject to Sections 11.3(b)shall not make (or, 11.3(c) and 11.3(d)as appropriate, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided procure that the person entitled to indemnification Company shall give the Supplier (provided at the Supplier’s costnot make) all reasonable cooperationany admission of liability, access and assistance for the purposes of considering and resisting such claim;
(b) agreement or compromise with respect any person, body or authority in relation to any such third party claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, Seller (such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(db) at their own discretion and upon receipt of a written request from the Seller, shall allow (or, as appropriate, shall procure that the Company shall allow) the person entitled Seller to indemnification pursuant be placed in a position to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining take on or taking take over (as the case may be) the conduct of any defenceall proceedings, disputeappeals and/or negotiations of whatsoever nature arising in connection with the claim in question, compromise or appeal of any claim (or of any incidental negotiations) subject to which Section 11.3(a) applies. On receipt of such notice being fully indemnified on an after-Tax basis to its reasonable satisfaction by the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification Seller against all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the samewhich it incurs; and
(iic) the amount paid as a consequence of clause 9.1.3 shall, at their own discretion, give, subject to the person entitled to indemnification being given reasonable notice by the Supplier in respect or on behalf of the Seller and being paid all reasonable costs and expenses, all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, compromising or contesting any such claim under or liability as the relevant indemnitySeller or its professional advisers reasonably request, provided that there shall be no obligation on the part subject to any existing confidentiality obligations of the person entitled Purchasers. The Seller agrees to indemnification to pursue keep all such recovery information confidential and that the Supplier is repaid only to the extent that the amount of use it for such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterpurpose.
Appears in 1 contract
Conduct of Claims. In (a) (assumption of Claims) Subject to paragraph (f), the event Shareholder is, subject to the rights of any claimsinsurer, statutory feesentitled to defend any Claim notified to it under clause 15.5, costsand in so doing, charges, penalties (including without limitation institute any legal costs)or other proceedings (together, contributions, compensations, “Proceedings”) in the name of the Indemnified Party under the sole management and control and at the sole cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is the Shareholder provided by the Supplier pursuant to ARTICLE 11, the following provisions shall applythat:
(ai) the Shareholder consults with both the Indemnified Party and the associated Joint Lead Manager regarding the appointment of legal counsel;
(ii) the Shareholder diligently defends the Claim and both the Indemnified Party and the associated Joint Lead Manager are kept fully informed throughout the Proceedings;
(iii) neither the Indemnified Party nor the associated Joint Lead Manager has any liability for any costs or expenses associated with the Claim or the Proceedings; ▇▇▇▇▇▇▇ + ▇▇▇▇▇ page | 58
(iv) the Shareholder has a reasonable regard to preserving the associated Joint Lead Manager’s reputation in conducting the defence of the Claim;
(v) the Indemnified Party and its associated Joint Lead Manager have the right to information, consultation and, subject to Sections 11.3(bclause 15.6(d), 11.3(cindependent legal representation concerning or with respect to the Proceedings;
(vi) no admission of liability or compromise or consent to judgment whatsoever in connection with the Proceedings may take place without the prior written consent of the Indemnified Party and 11.3(dits associated Joint Lead Manager unless the admission or compromise:
(A) includes an unconditional release of the Indemnified Parties from all liability arising out of the proceeding and Claim; and
(B) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of the Indemnified Parties; and
(vii) the associated Joint Lead Manager or other Indemnified Party have the right at any time to re-assume the defence of any claim or action assumed by the Shareholder.
(b) (separate indemnity) Without in any way limiting clause 15.1, if the Shareholder initiates, defends or takes any proceedings as described in paragraph (a), where it appears that a person is must indemnify the Indemnified Parties who are parties to, or may be entitled to indemnification from the Supplier subject of, the proceedings, in respect of all (but not part only) Losses incurred by those Indemnified Parties in relation to the claim the subject of the liability arising out proceedings or to any Loss resulting from those proceedings.
(c) (obligations of a claimIndemnified Parties) Each Indemnified Party, such person entitled subject only to indemnification may at its sole election clauses 15.6(e) and subject 15.6(f), is required, and their associated Joint Lead Manager must take reasonable steps to cause the Indemnified Parties to:
(i) approval by promptly take any relevant insurers (without prejudice reasonable action as the Shareholder requests to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defenceavoid, dispute, compromiseresist, appeal, compromise or appeal of defend the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claimProceedings;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or settle any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnification, such Shareholder (this consent not to be unreasonably withheld or delayed);
(ciii) a person subject to legal professional privilege, promptly give all reasonable assistance and co-operation to the Shareholder in the conduct of the Proceedings, including providing the Shareholder with any documents in their possession and signing all documents, authorities and directions which the Shareholder may reasonably require; and
(iv) subject to the rights of any insurer, do anything reasonably necessary or desirable to ensure that the Shareholder is subrogated to and enjoys the benefit of the rights of the Indemnified Parties in relation to the Proceedings and to render any assistance as may be reasonably requested by the Shareholder for that purpose;
(d) (Indemnified Party - separate representation) The Indemnified Party will be entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit at its election (and without prejudice to its rights and remedies right of indemnity under this Agreementclause 15.1) to be separately represented in relation to any Proceedings if:
(i) the Supplier is Shareholder has not entitled to, chosen legal counsel satisfactory to the Indemnified Party (acting reasonably);
(ii) a conflict for legal counsel chosen by the Shareholder or is not permitted or instructed, take conduct between the interests of the claim in accordance with Section 11.3(a)Shareholder and the interests of the Indemnified Party arises or could arise;
(iii) there may be legal defences available to the Indemnified Party that are different from or additional to those available to the Shareholder or another Indemnified Party represented by that legal counsel; or
(iiiv) the Supplier fails Indemnified Party reasonably believes it is necessary to comply do so in any material respect with order to protect the provisions Indemnified Party’s reputation or standing, in which case the cost of Sections 11.3(a) or 11.3(b);
(d) such representation will be borne by the person entitled Shareholder. An Indemnified Party may otherwise elect to indemnification pursuant to ARTICLE 11 shall be free separately represented at any time not related to give notice to the Supplier that it is retaining or taking over paragraphs (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiationsi) to (iv) above, in which Section 11.3(a) applies. On receipt case the cost of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;representation will be borne by that Indemnified Party.
(e) if (Indemnified Party - assumption and settlement) If an Indemnified Party (without prejudice to its right of indemnity under clause 15.1) assumes or re-assumes the Supplier pays to the person entitled to indemnification an amount in respect defence or conduct of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofany Proceedings:
(i) an amount equal it will have sole management and control of the Proceedings, and absolute discretion with respect to the sum recovered (progress, negotiation or the value settlement of any Proceedings but in doing so will consult with and take account of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by views of the person entitled to indemnification in recovering the sameShareholder so far as is reasonably possible; and
(ii) the amount paid to the person entitled to indemnification indemnities given by the Supplier Shareholder under clause 15.1 will continue to apply in respect of the Indemnified Party in relation to the claim under the relevant indemnity, provided that there shall be no obligation on the part subject of the person entitled Proceedings or to indemnification to pursue such recovery any Loss resulting from those Proceedings other than for legal fees and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered expenses from the Supplier exceeds any loss sustained by date on which the person entitled to indemnification;Indemnified Party assumes or re-assumes the defence or conduct of the Proceedings.
(f) (conditions to Indemnified Parties’ obligations)
(i) The Indemnified Parties are under no obligation under this clause 15.6 unless, at the Supplier shall inform time at which the person entitled to indemnification Shareholder requests any of the requirements Indemnified Parties to take any action, the Shareholder irrevocably and unconditionally agrees in a form and substance acceptable to that Indemnified Party, acting reasonably, to indemnify that Indemnified Party against all Losses incurred by or awarded against that Indemnified Party in taking the action required, as and when they fall due, including legal costs and disbursements of their lawyers on a full indemnity basis and the cost of any insurer who may have an obligation to provide an indemnity in respect involvement of any liability arising officers of their associated Joint Lead Manager at normal commercial rates.
(ii) The Indemnified Parties are under no obligation under this Agreement clause 15.6, and the Shareholder will have no right under this clause 15.6 to defend or institute legal or other proceedings in relation the name of the Indemnified Parties if to such do so would, in the person entitled reasonable opinion of the associated Joint Lead Manager, lead to indemnification shall issue instructions accordingly; and
(g) any person entitled a material risk of damage to an indemnity from reputation or standing of the Supplier must take all reasonable measures to mitigate any loss, damage Joint Lead Manager or liability that it may suffer in respect of any such matterIndemnified Parties.
Appears in 1 contract
Sources: Offer Management Agreement (Genworth Financial Inc)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval Whenever a claim for indemnification shall arise under this Section as a result of a third party claim, the party seeking indemnification (the “Indemnified Party”), shall notify the party from whom such indemnification is sought (the “ Indemnifying Party”) in writing of the Proceeding and the facts constituting the basis for such claim in reasonable detail; provided, that the Indemnified Party shall not be foreclosed by any relevant insurers (without prejudice failure to Section 11.3(f); and
(ii) provide timely notice of the Supplier providing existence of a third party claim to the party entitled Indemnifying Party except to indemnification with the extent that the Indemnifying Party has been materially prejudiced as a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason direct result of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claimdelay;
(ii) Such Indemnifying Party shall have the Supplier right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided, however, that counsel to the Indemnifying Party shall not bring (except with the name consent of the person entitled relevant Indemnified Party) also be counsel to indemnification such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or any Group Member thereof) into disreputeseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, unless a conflict of interest shall be caused thereby; and
(iii) the Supplier shall not pay or settle such claims No Indemnifying Party shall, without the prior written consent of the person entitled to indemnification, such Indemnified Parties (which consent shall not to be unreasonably withheld withheld), settle or delayed;
(c) a person entitled compromise or consent to indemnification shall be free the entry of any judgment with respect to pay any litigation, or settle any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim on such terms as it thinks fit (and without prejudice to its rights and remedies whatsoever in respect of which indemnification could be sought under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, disputeunless such settlement, compromise or appeal consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 1 contract
Conduct of Claims. In This Section 12.3 will apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the Supplier pursuant benefit of the indemnity. The party having, or claiming to ARTICLE 11have, the following provisions shall applybenefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly:
(a) if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Agreement, the Beneficiary will give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within 5 Business Days of receipt thereof. Such notice will specify with reasonable particularity (to the extent that the information is available): (i) the factual basis for the claim, and (ii) the amount of the claim. If the Beneficiary fails to give such written notice to the Indemnifier, such failure will not preclude the Beneficiary from making a claim against the Indemnifier under this Section 12.3 but the Beneficiary's right to indemnification will be reduced to the extent that such delay prejudiced the defence of the claim or increased the amount of liability or the cost of the defence;
(b) subject to Sections 11.3(b12.3(c), 11.3(c12.3(d) and 11.3(d12.3(e), where on the giving of a notice by the Beneficiary pursuant to Section 12.3(a), if it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part onlyless than all) of the liability arising out of a the claim, such person entitled the Indemnifier will (upon notice to indemnification may at the Beneficiary within 30 days from its sole election receipt of the Beneficiary's notice referred to above and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall . The Beneficiary will give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(bc) with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a12.3(b):
(i1) the Supplier shall Indemnifier will keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii2) the Supplier shall Indemnifier will not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and;
(iii3) the Supplier shall Indemnifier will not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c4) a person entitled the Indemnifier will not admit liability or fault to indemnification shall any third party without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed; and
(5) the Indemnifier will use all reasonable efforts to have the Beneficiary named as beneficiary under any release given by the persons bringing the claim to which this Section 12.3 pertains and to have such release delivered to the Beneficiary;
(d) subject to Section 12.4, the Beneficiary will be free to pay pay, settle or settle defend any claim on such terms as it thinks fit (and and, without prejudice to its rights and remedies under this Agreement) , if:
(i1) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a12.3(b); or
(ii2) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 30 days of the Indemnifier's receipt of the notice from the Beneficiary referred to in Section 12.3(a) or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(3) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(bSection 12.3(c);
(de) with respect to any claim conducted by the Beneficiary pursuant to Section 12.3(d):
(1) the person entitled Beneficiary will keep the Indemnifier fully informed and consult with it about material elements of the conduct of the claim;
(2) the Beneficiary will not bring the name of the Indemnifier into disrepute;
(3) the Beneficiary will not pay or settle such claims without the prior consent of the Indemnifier, such consent not to indemnification pursuant be unreasonably withheld or delayed;
(4) the Beneficiary will not admit liability or fault to ARTICLE 11 shall any third party without the prior consent of the Indemnifier, such consent not to be free at any time to give notice unreasonably withheld or delayed;
(5) the Beneficiary will not disclose to the Supplier claimant the existence of the indemnity; and
(6) in the event that it the claimant is retaining aware of the indemnity (without the Beneficiary breaching Paragraph 12.3(e)(5)), the Beneficiary will use all reasonable efforts to have the Indemnifier named as beneficiary under any release given by the persons bringing the claim to which this Section 12.3(e) pertains and to have such release delivered to the Indemnifier;
(f) the Beneficiary may, with the prior consent of the Indemnifier (which consent may be unreasonably withheld), retain or taking take over (as the case may be) at any time the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a12.3(b) applies. On receipt of such notice If the Supplier shall Indemnifier consents to the Beneficiary retaining or taking over the claim (as the case may be), the Indemnifier will promptly take all steps (including the delivery to the Beneficiary of all relevant documentation) necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall will provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary retains or takes over any claim pursuant to this Section 12.3(f), then the Indemnifier will be released from any liability under its indemnity under Sections 12.1 or 12.2 (as the case may be) and, without prejudice to any accrued liabilities, any liability under its Indemnity given pursuant to Section 12.3(b) in respect of such claim;
(g) subject to Section 12.3(f), the Indemnifier will be free at any time to give notice to the Beneficiary that it is taking over the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which this Section 12.3 applies. Upon receipt of such notice, the Beneficiary will promptly take all steps (including the delivery to the Indemnifier of all relevant documentation) necessary to transfer the conduct of such claim to the Indemnifier, and will provide to the Indemnifier all reasonable co-operation, access and assistance for the purposes of considering and resisting such claim;
(eh) if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an any indemnity and the person entitled to indemnification Beneficiary subsequently recovers or receives (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum or anything else of value which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall Beneficiary will forthwith repay to the Supplier whichever is Indemnifier, with interest at the Default Interest Rate, the lesser of:
(i1) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the samesuch sum; and
(ii2) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall will be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss Direct Losses sustained by the person entitled to indemnification;Beneficiary; and
(fi) any person taking any of the Supplier shall inform the person entitled steps contemplated by Sections 12.3(a) to indemnification of 12.3(h) will comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterAgreement.
Appears in 1 contract
Sources: Project Agreement
Conduct of Claims. In This Clause 36.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 36.3.3, 36.3.4 and 36.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 36.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 36.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 36.3.3 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 36.3.3 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 36.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 36.3.3 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 36.3.5 then the Indemnifier shall be released from any liability under its indemnity under Clause 36.1 (ehubco Indemnities to Authority) or Clause 36.2 (Authority Indemnities to hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 36.3.3 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) of:- an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.that:
Appears in 1 contract
Conduct of Claims. In 7.1 Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Officer and to direct the conduct of the Officer in the defence of any claimsClaims.
7.2 Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of a Officer provided that:
(a) subject the Officer shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Officer refuses the engagement of Nominated Counsel to defend the Claim on his behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the Officer at his own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Officer in respect of Personal Counsel Costs unless:
(A) the Officer’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Officer has reasonably determined that there may be a conflict of interest between the Officer and the Company in the defence of a Claim, in which case then the Officer shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Officer shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3 In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Officer:
(a) the Company shall not be liable to indemnification at the SupplierOfficer under this Deed or otherwise for any legal expenses subsequently directly incurred by the Officer in connection with the Officer’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Officer shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Officer is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him; andor
(iii) in connection with an application for relief which is refused, and any such amounts shall fall to be repaid not later than:
(iv) in the Supplier event of the Officer being convicted in the proceedings, the date when the conviction becomes final; or
(v) in the event of judgment being given against the Officer in the proceedings, the date when the judgment becomes final; or
(vi) in the event of the Court refusing to grant the Officer relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4 The Officer shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 1 contract
Conduct of Claims. In 5.7.1 If either party (in each case the event “ Notifying Party”) becomes aware of any claims, statutory fees, costs, charges, penalties matter that may give rise to a claim against the other party (the “ Recipient”) under this Agreement including without limitation a claim from any legal costs), contributions, compensations, cost recoveries, expenses third party which constitutes or fines being levied may constitute a Shared Liability or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person Recipient is or may be entitled liable to indemnification from indemnify the Supplier Notifying Party under this Agreement, notice of that fact (together with all details of the matter in question as are available) shall be given by the Notifying Party to the Recipient as soon as is reasonably practicable (but in any event within such period as will afford the Recipient reasonable opportunity of requiring the Notifying Party to lodge a timely appeal or response). Any failure to give such notice shall not affect the rights of the Notifying Party except to the extent that the rights or interests of the Recipient are prejudiced by such failure.
5.7.2 Other than in respect of all a Shared Liability (but not part only) which shall be dealt with in accordance with the provisions of Clause 5.7.4), without prejudice to the validity of the claim or alleged claim in question, the Notifying Party shall allow, and shall procure that any member of its Group allows, the Recipient and its accountants and professional advisers to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such claim and for such purpose the Notifying Party shall, and shall procure that all members of its Group shall, at the expense of the Recipient, take all such action and give all such information, documentation and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents, books and records, as the Recipient or its accountants or professional advisers may reasonably request for the purposes of investigating the matter or circumstance alleged to give rise to such claim provided that (i) the Notifying Party shall not be obliged to breach any confidentiality obligations to which a member of its Group is bound and (ii) the Notifying Party shall not be obliged to take any action which would prejudice any legal privilege of which it is aware and which attaches to any documents. Back to Contents
5.7.3 If the claim in question is a result of or in connection with a claim by or liability arising out to a third party (other than in respect of a claim, such person entitled to indemnification may at its sole election and subject toShared Liability) then:
(i) approval no admission of liability shall be made by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense Notifying Party or any member of its Group and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name be compromised, disposed of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims settled without the prior written consent of the person entitled to indemnification, Recipient (such consent not to be unreasonably withheld or delayed);
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) subject to Clause 5.7.4, the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 Recipient shall be free entitled at its own expense in its absolute discretion to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, postpone, settle, compromise or contest such claim or liability or any time adjudication in respect thereof (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Notifying Party or any member of its Group concerned and to give notice to the Supplier that it is retaining or taking over (as the case may be) have the conduct of any defencerelated proceedings, dispute, compromise negotiations or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameappeals; and
(iiiii) the amount paid Notifying Party shall, and will procure that any relevant member of its Group shall, take all such action and give all such information, documentation and assistance, including access to premises and personnel, copies of any relevant correspondence and the right to examine and copy or photograph any assets, accounts, documents, books and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, postponing, settling, compromising or contesting any such claim, liability or adjudication as the Recipient or its professional advisers reasonably request provided that the Recipient shall indemnify the Notifying Party against all third party costs and expenses that it or any member of its Group may reasonably and properly incur as a result of the Recipient taking the actions described in Clause 5.7.3(ii) and this Clause 5.7.3(iii) and, if so required by the Notifying Party, shall provide a reasonable estimate of the costs and expenses that the Notifying Party may incur as a result of taking such action as is then requested by the Recipient. The Recipient agrees to keep the Notifying Party fully informed as to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements progress of any insurer who may have an obligation to provide an indemnity such claim and the defence thereof.
5.7.4 The parties agree that proceedings in respect of any liability arising under this Agreement and Shared Liability shall be conducted by such entity against whom or in relation whose name such Liability arises unless the parties agree in writing that a member of the other party’s Group would be in a better position to deal with such proceedings. The parties will so agree where the person entitled chances of successfully negotiating a solution to indemnification the issue are more likely with one party than the other. The provisions of Schedule 4 shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer apply in respect of any such matter.proceedings. If the provisions of Clauses 5.1.1 and 5.1.2 cease to apply due to the provisions of paragraph 1.1 of Schedule 3, this Clause 5 shall cease to apply in respect of the relevant Liabilities. Back to Contents
Appears in 1 contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject If either of the parties shall become liable to Sections 11.3(bindemnify any Indemnitee pursuant to this Clause 8 (Costs and Indemnities), 11.3(cthe Charterer and the Owner shall consult in good faith and each of them shall use reasonable endeavours to avoid (or reduce the amount of) and 11.3(d), where it appears that the Claim giving rise to such indemnification.
(b) If a person Claim shall be made against any Indemnitee for which a party is or may be entitled required to indemnification from indemnify the Supplier Indemnitee pursuant to this Clause 8 (Costs and Indemnities), the Indemnitee shall promptly notify the liable party in respect writing of that Claim and shall promptly provide the liable party with all such information available to the Indemnitee regarding the Claim as the liable party may reasonably request. If a Claim shall be made against any Indemnitee for which the liable party may be required to indemnify the Indemnitee pursuant to this Clause 8 (but not part only) Costs and Indemnities), and under Applicable Law of the liability arising out relevant jurisdiction the liable party is allowed to contest directly that Claim in its own name, then, subject to the rights of a claim, such person entitled to indemnification may at its sole election insurers under any Insurances and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf obligation of the person entitled liable party to indemnification pay any sum due to the Indemnitee pursuant to this Clause 8 (Costs and Indemnities) on its due date, the liable party shall be permitted, at the Supplier’s own its expense and take conduct in its own name, to contest the imposition of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier Claim. The liable party shall not bring be permitted to contest the imposition of a Claim in the name of the person entitled to indemnification Indemnitee other than as contemplated in Clauses 8.6 (or any Group Member thereofb) into disrepute; and
and 8.6 (iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;c).
(c) If the liable party is prohibited by Applicable Law from contesting a person entitled Claim in its own name, or if it is a requirement of Applicable Law for an Indemnitee to indemnification join in or assist in the contesting by the liable party of any Claim, upon request from the liable party, the Indemnitee shall, subject to the provisions of Clause 8.6 (d), in good faith, at the liable party’s expense, contest or assist promptly in contesting the Claim. After considering any views offered by the Indemnitee and the Indemnitee’s counsel concerning the forum in which a Claim is most likely to be favourably contested, the liable party may, acting reasonably, select the forum for the contest and determine whether the contest shall be free by (i) resisting the Claim, (ii) paying the Claim under protest, (iii) paying the Claim and seeking a refund or other repayment thereof, or (iv) seeking a reduction in the amount of the Claim.
(d) In no event shall an Indemnitee be required to pay contest any Claim nor shall an Indemnitee be required to (i) join in or settle (ii) assist in contesting any claim on such terms as it thinks fit Claim pursuant to this Clause 8 (Costs and without prejudice to its rights and remedies under this AgreementIndemnities) ifunless:
(i) the Supplier is liable party shall have agreed to pay the Indemnitee on demand, and indemnify such Indemnitee from, all costs, losses and expenses that the Indemnitee incurs in contesting or assisting in contesting the Claim or arising out of or relating to the contest or assistance (including, but not entitled limited to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs costs, expenses and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnificationfees);
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Bareboat Charter Agreement (Seanergy Maritime Holdings Corp.)
Conduct of Claims. In This paragraph 1 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule (“Claim”), the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within ten (10) Working Days of receipt of the same. Subject to paragraphs 1.4 and 1.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 1.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 1.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 1.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 1.3 above; or
the Indemnifier fails to notify the Beneficiary in writing of its intention to take conduct of the relevant Claim within ten (ii10) Working Days of the Supplier notice from the Beneficiary under paragraph 1.2 above or if the Indemnifier notifies the Beneficiary in writing that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterparagraph 1.4 above.
Appears in 1 contract
Sources: Order Form and Call Off Terms
Conduct of Claims. In 9.1 Without prejudice to the event Purchaser’s right to bring a Non Tax Claim under this Agreement, if the Purchaser becomes aware of any claimsclaim or potential claim by a third party against any member of the Target Group (a Third Party Claim) after Closing which is likely to result in a Non Tax Claim being made under this Agreement, statutory feesthe Purchaser shall as soon as reasonably practicable give notice of the Third Party Claim to each of the Sellers and ensure that access is given to such information, costsdocumentation and management as is reasonably necessary for a representative appointed jointly by the Sellers (and whose identity is notified to the Purchaser (the Sellers’ Claim Representative)) to make a preliminary assessment of the Third Party Claim (provided that the Sellers shall reimburse reasonably incurred third party out of pocket costs and expenses of the Purchaser).
9.2 Without prejudice to the Purchaser’s right to bring a Non Tax Claim under this Agreement, chargessubject to the Purchaser and each member of its Group being indemnified and secured by the Sellers against all reasonable out-of-pocket costs and expenses, penalties (including without limitation any those of its legal costs)advisers, contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person incurred in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11that Third Party Claim, the following provisions shall applyPurchaser shall:
(a) subject provide such information as is reasonable so as to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled enable the Sellers’ Claim Representative to indemnification from investigate further the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim Third Party Claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claimSellers;
(b) not (and procure that no member of its Group shall) admit liability or make any agreement or compromise with respect any person, body or authority in relation to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims that Third Party Claim without the prior written consent of the person entitled to indemnification, Sellers’ Claim Representative (such consent not to be unreasonably withheld or delayed;); and
(c) a person (subject to the Purchaser or the relevant members of its Group being entitled to indemnification shall employ its or their own legal advisers) take any action that the Sellers’ Claim Representative reasonably requests to avoid, resist, dispute, appeal, compromise or defend that Third Party Claim (save to the extent that such action would, in the reasonable opinion of the Purchaser, be free materially prejudicial to pay the business of the Target Group taken as a whole or settle any claim on such terms as it thinks fit (and without line of business of the Purchaser Group).
9.3 Without prejudice to its rights and remedies the Purchaser’s right to bring a Non Tax Claim under this Agreement) if:
(i) , the Supplier is rights of the Sellers under Clause 9.2 shall only apply to a Third Party Claim if the Sellers’ Claim Representative gives a joint notice to the Purchaser in writing of the Sellers’ intention to exercise their rights within 20 Business Days of the Purchaser giving notice of the Third Party Claim. If the Sellers’ Claim Representative does not give a joint notice during that period, the Purchaser shall be entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect Third Party Claim, but shall reasonably consult with the provisions Sellers’ Claim Representative in relation to such conduct and keep the Sellers’ Claim Representative reasonably informed of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt progress of such notice Third Party Claim and provide copies of documentation reasonably requested by the Supplier shall promptly take all steps necessary to transfer Sellers’ Claim Representative in relation thereto (the conduct Sellers reimbursing the Purchaser for any reasonable out of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnityPurchaser properly incurred), provided that there shall be no obligation on the part Purchaser may in its absolute discretion, settle, compromise, or resist any action, proceedings or claim against any member of the person entitled to indemnification to pursue such recovery and Purchaser Group out of which that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who Third Party Claim may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterarise.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Bt Group PLC)
Conduct of Claims. In This sub-clause shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by the Private Party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against the CoT having (or claiming to have) the benefit of the indemnity. Accordingly: if the CoT receives any notice, demand, letter or other document concerning any claim for which it appears that the CoT is, or may become entitled to, indemnification under this Agreement, the CoT shall give notice in writing (together with a copy of such notice, demand, letter or other document) to the Private Party as soon as reasonably practicable and in any event within ten (10) Business Days of receipt of the same; subject to Clauses 11.5.3, 11.5.4 and 11.5.5 below, on the giving of a notice by the Supplier CoT pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 11.5.1 above, where it appears that a person the CoT is or may be entitled to indemnification from the Supplier Private Party in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Private Party shall subject to indemnification may at the rights of the insurers under the Insurances be entitled, by giving notice to the CoT of its sole election and subject to:
(i) approval by any relevant insurers (without prejudice intention to Section 11.3(f); and
(ii) the Supplier providing the party entitled do so, to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such actiondispute, permit or require the Supplier to dispute the claim on behalf or to conduct all negotiations and court, tribunal or other proceedings in respect thereof, in the name of the person entitled to indemnification CoT at the Supplier’s Private Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The CoT shall give the Supplier (provided at the Supplier’s cost) Private Party all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
claim all of which shall be provided by the CoT at the cost of the Private Party (b) such costs being reasonable and fair); with respect to any claim conducted by the Supplier Private Party pursuant to Section 11.3(a):
(i) Clause 11.5.2 above: the Supplier Private Party shall keep the person entitled to indemnification CoT fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Private Party shall not bring the name of the person entitled to indemnification (or any Group Member thereof) CoT into disrepute; and
(iii) and the Supplier Private Party shall not pay or settle such claims without the prior consent of the person entitled to indemnificationCoT, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the CoT shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Private Party is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 11.5.2 above; or
or the Private Party fails to notify the CoT of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the CoT under Clause 11.5.1 above or notifies the CoT that it does not intend to take conduct of the claim; or the Private Party fails to comply in any material respect with the provisions of Sections 11.3(a) Clause 11.5.2 above; Should the CoT settle, admit, or 11.3(b);
(d) compromise any claim by a third party, other than under circumstances referred to in Clause 11.5.4, in respect of which it seeks to be indemnified under this Agreement without the person entitled prior consent of the Private Party, then the Private Party's obligation to indemnification pursuant to ARTICLE 11 indemnify the CoT shall be free at any time to give notice limited to the Supplier that it is retaining extent to which the third party claimant would have in law been able to recover such claim from the CoT but for the admission, settlement or taking over compromise thereof. Should the Private Party receiving notice referred to in Clause 11.5.1 not respond within twenty (as 20) Business Days to the case may be) the conduct of CoT regarding any defenceproposed admission, dispute, settlement or compromise or appeal of any claim (or that has been notified to it in terms of any incidental negotiations) 11.5.1 then the Private Party shall be deemed to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim have given its consent to the person entitled proposed terms of admission, settlement or compromise of a claim, which were communicated to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) it. if the Supplier Private Party pays to the person entitled to indemnification CoT an amount in respect of an indemnity and the person entitled to indemnification CoT subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification CoT shall forthwith repay to the Supplier Private Party whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification CoT in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification CoT by the Supplier Private Party in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification CoT to pursue such recovery recovery, and provided that the Supplier Private Party is repaid only to the extent that the amount of such recovery recovery, aggregated with any sum recovered from the Supplier Private Party exceeds any loss sustained by the CoT (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Private Party); and any person entitled taking any of the steps contemplated by Clauses 11.5.1 to indemnification;
(f) the Supplier 11.5.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and Agreement. Where the Private Party is indemnified by either the Construction Subcontractor or the Operations Subcontractor for a claim in relation to such respect of which it has given an indemnity under this Clause 11, the person Private Party shall be entitled to indemnification permit the Construction Subcontractor or the Operations Subcontractor, as the case may be, to conduct the claim on its behalf, provided that the Private Party shall issue instructions accordinglyprocure that the claim is conducted in accordance with this Clause 11 and the Private Party shall remain solely liable to the CoT for compliance with all of the Private Party's obligations under this Clause 11. 12LIMITS ON LIABILITY Save for: the CoT’s right to claim at any time the amount of any direct losses incurred by it as a result of rectifying or mitigating the effects of any Private Party Event of Default; and
and any other express right of the CoT under this Agreement to be indemnified against any third party claim, (g) any person entitled and subject to an indemnity from Clause 42.1.3 [CoT’s Options] the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer sole remedy of the CoT in respect of any failure in the delivery of the Services shall be the operation of the Deductions in accordance with the Payment Mechanism provided for in Schedule 13 Part 1 [Performance Standards and Payment Mechanism] Nothing in Clause 12.1 shall prevent or restrict the right of the CoT to seek any interdict or similar relief, any decree of specific performance or any other discretionary remedies of a court or dispute resolution body or other tribunal. If the Private Party is expressly entitled to any indemnification under this Agreement for any losses incurred by it whether because of the conduct of the CoT or any other cause, then the Private Party’s sole remedy in respect of such matterlosses shall be its indemnity and, accordingly, it shall not be entitled to any other remedy for such losses whether pursuant to Clause 39 or otherwise provided that this shall not detract from the Private Party’s rights pursuant to Clause 43 [CoT Events of Default]. A Party who is entitled to any indemnification or other compensation under this Agreement for any losses incurred by it, whether because of the conduct of the other Party or for any other cause, shall, in respect of such losses, not be entitled to: any claim for damages based on breach of contract, or delict or on any other basis in respect of such conduct or cause; or any claim for its own or that of subcontractors loss of profit, loss of use, loss of production, loss of business, loss of business opportunity, indirect, special or consequential loss as a result of such conduct or cause other than where such loss is specifically provided for as part of a compensation in terms of this Agreement. Save as otherwise provided in Clause 11.4 and 35.1.10 and to the extent the act or omission is or ought to be covered by the Insurances set out in Schedule 14 [Insurances], the CoT shall not be liable whether in contract, in delict or as a result of an indemnification in terms of this Agreement, or otherwise, to the Private Party in respect of any negligent act or omission of the CoT, its employees, officials, representatives or guests, which is or ought to be insured against pursuant to the Insurances. The Private Party has agreed to this on the basis that it shall mitigate the risks of any such negligent acts or omissions on the part of the CoT by obtaining and maintaining Insurances.
Appears in 1 contract
Sources: Public Private Partnership Agreement
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnified own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within 10 Working Days of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Consultant or the Consultant Party are the Beneficiary and the conduct of which the Commissioner or Consultant acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Consultant or the Consultant Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 1 contract
Conduct of Claims. In (a) (assumption of Claims) Subject to paragraph (f), the event Company is, subject to the rights of any claimsinsurer, statutory feesentitled to defend any Claim notified to it under clause 13.5, costsand in so doing, charges, penalties (including without limitation institute any legal costs)or other proceedings (together, contributions, compensations, “Proceedings”) in the name of the Indemnified Party under the sole management and control and at the sole cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is the Company provided by the Supplier pursuant to ARTICLE 11, the following provisions shall applythat:
(ai) the Company consults with both the Indemnified Party and the associated Joint Lead Manager regarding the appointment of legal counsel;
(ii) the Company diligently defends the Claim and both the Indemnified Party and the associated Joint Lead Manager are kept fully informed throughout the Proceedings;
(iii) neither the Indemnified Party nor the associated Joint Lead Manager has any liability for any costs or expenses associated with the Claim or the Proceedings;
(iv) the Company has a reasonable regard to preserving the associated Joint Lead Manager’s reputation in conducting the defence of the Claim;
(v) the Indemnified Party and its associated Joint Lead Manager have the right to information, consultation and, subject to Sections 11.3(bclause 13.6(d), 11.3(cindependent legal representation concerning or with respect to the Proceedings;
(vi) no admission of liability or compromise or consent to judgment whatsoever in connection with the Proceedings may take place without the prior written consent of the Indemnified Party and 11.3(dits associated Joint Lead Manager unless the admission or compromise:
(A) includes an unconditional release of the Indemnified Parties from all liability arising out of the proceeding and Claim; and
(B) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of the Indemnified Parties; and
(vii) the associated Joint Lead Manager or other Indemnified Party have the right at any time to re-assume the defence of any claim or action assumed by the Company.
(b) (separate indemnity) Without in any way limiting clause 13.1, if the Company initiates, defends or takes any proceedings as described in paragraph (a), where it appears that a person is must indemnify the Indemnified Parties who are parties to, or may be entitled to indemnification from the Supplier subject of, the proceedings, in respect of all (but not part only) Losses incurred by those Indemnified Parties in relation to the claim the subject of the liability arising out proceedings or to any Loss resulting from those proceedings.
(c) (obligations of a claimIndemnified Parties) Each Indemnified Party, such person entitled subject only to indemnification may at its sole election clauses 13.6(e) and subject 13.6(f), is required, and their associated Joint Lead Manager must take reasonable steps to cause the Indemnified Parties to:
(i) approval by promptly take any relevant insurers (without prejudice reasonable action as the Company requests to Section 11.3(f)avoid, dispute, resist, appeal, compromise or defend the Proceedings; and▇▇▇▇▇▇▇ + ▇▇▇▇▇ page | 49
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of not settle any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnification, such Company (this consent not to be unreasonably withheld or delayed);
(ciii) a person subject to legal professional privilege, promptly give all reasonable assistance and co-operation to the Company in the conduct of the Proceedings, including providing the Company with any documents in their possession and signing all documents, authorities and directions which the Company may reasonably require; and
(iv) subject to the rights of any insurer, do anything reasonably necessary or desirable to ensure that the Company is subrogated to and enjoys the benefit of the rights of the Indemnified Parties in relation to the Proceedings and to render any assistance as may be reasonably requested by the Company for that purpose;
(d) (Indemnified Party - separate representation) The Indemnified Party will be entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit at its election (and without prejudice to its rights and remedies right of indemnity under this Agreementclause 13.1) to be separately represented in relation to any Proceedings if:
(i) the Supplier is Company has not entitled to, chosen legal counsel satisfactory to the Indemnified Party (acting reasonably);
(ii) a conflict for legal counsel chosen by the Company or is not permitted or instructed, take conduct between the interests of the claim in accordance with Section 11.3(a)Company and the interests of the Indemnified Party arises or could arise;
(iii) there may be legal defences available to the Indemnified Party that are different from or additional to those available to the Company or another Indemnified Party represented by that legal counsel; or
(iiiv) the Supplier fails Indemnified Party reasonably believes it is necessary to comply do so in any material respect with order to protect the provisions Indemnified Party’s reputation or standing, in which case the cost of Sections 11.3(a) or 11.3(b);
(d) such representation will be borne by the person entitled Company. An Indemnified Party may otherwise elect to indemnification pursuant to ARTICLE 11 shall be free separately represented at any time not related to give notice to the Supplier that it is retaining or taking over paragraphs (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiationsi) to (iv) above, in which Section 11.3(a) applies. On receipt case the cost of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;representation will be borne by that Indemnified Party.
(e) if (Indemnified Party - assumption and settlement) If an Indemnified Party (without prejudice to its right of indemnity under clause 13.1) assumes or re-assumes the Supplier pays to the person entitled to indemnification an amount in respect defence or conduct of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofany Proceedings:
(i) an amount equal it will have sole management and control of the Proceedings, and absolute discretion with respect to the sum recovered (progress, negotiation or the value settlement of any Proceedings but in doing so will consult with and take account of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by views of the person entitled to indemnification in recovering the sameCompany so far as is reasonably possible; and
(ii) the amount paid to the person entitled to indemnification indemnities given by the Supplier Company under clause 13.1 will continue to apply in respect of the Indemnified Party in relation to the claim under the relevant indemnity, provided that there shall be no obligation on the part subject of the person entitled Proceedings or to indemnification to pursue such recovery any Loss resulting from those Proceedings other than for legal fees and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered expenses from the Supplier exceeds any loss sustained by date on which the person entitled to indemnification;Indemnified Party assumes or re-assumes the defence or conduct of the Proceedings. ▇▇▇▇▇▇▇ + ▇▇▇▇▇ page | 50
(f) (conditions to Indemnified Parties’ obligations)
(i) The Indemnified Parties are under no obligation under this clause 13.6 unless, at the Supplier shall inform time at which the person entitled to indemnification Company requests any of the requirements Indemnified Parties to take any action, the Company irrevocably and unconditionally agrees in a form and substance acceptable to that Indemnified Party, acting reasonably, to indemnify that Indemnified Party against all Losses incurred by or awarded against that Indemnified Party in taking the action required, as and when they fall due, including legal costs and disbursements of their lawyers on a full indemnity basis and the cost of any insurer who may have an obligation to provide an indemnity in respect involvement of any liability arising officers of their associated Joint Lead Manager at normal commercial rates.
(ii) The Indemnified Parties are under no obligation under this Agreement clause 13.6, and the Company will have no right under this clause 13.6 to defend or institute legal or other proceedings in relation the name of the Indemnified Parties if to such do so would, in the person entitled reasonable opinion of the associated Joint Lead Manager, lead to indemnification shall issue instructions accordingly; and
(g) any person entitled a material risk of damage to an indemnity from reputation or standing of the Supplier must take all reasonable measures to mitigate any loss, damage Joint Lead Manager or liability that it may suffer in respect of any such matterIndemnified Parties.
Appears in 1 contract
Sources: Offer Management Agreement (Genworth Financial Inc)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Supply Agreement
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eDBFM Co Indemnities to Authority) or Clause 49.2 (Authority Indemnities to DBFM Co) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.that:
Appears in 1 contract
Sources: Project Agreement
Conduct of Claims. In the event of that any claims, statutory fees, costs, charges, penalties (including without limitation claim is made against the Seller and/or any legal costs), contributions, compensations, cost recoveries, expenses Group Company under any Transaction Agreement and the Purchaser and/or the Purchaser Nominee are/is included in or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant joined to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toclaim then:
(i) approval no admissions in relation to such third party claim shall be made by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at Purchaser, the Supplier’s own expense and take conduct of Purchaser Nominee or any defence, dispute, compromise, or appeal other member of the Purchaser’s Group and the claim and shall not be compromised, disposed of any incidental negotiations; provided that or settled without the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements written consent of the conduct of the claimSeller;
(ii) the Supplier Seller shall not bring be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the person entitled Purchaser or other member of the Purchaser’s Group concerned and to indemnification (have the conduct of any related proceedings, negotiations or any appeals and in that connection the Purchaser shall give or cause to be given instructions to such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group Member thereof) into disrepute; andconcerned but in accordance with the Seller’s instructions;
(iii) the Supplier Purchaser shall, and the Purchaser shall not pay or settle such claims without the prior consent procure any other members of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise Purchaser’s Group relevant to the claim under the indemnityshall, the person entitled to indemnification shall forthwith repay give to the Supplier whichever is the lesser of:
(i) an amount equal Seller, subject to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket their being paid all reasonable costs and expenses (including legal expenses) properly incurred by the person entitled and indemnified to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of their reasonable satisfaction against any liability arising under this Agreement or damages incurred thereby, all such information and in relation assistance including access to such premises and personnel, and the person entitled right to indemnification shall issue instructions accordingly; andexamine any assets, accounts, documents and records, as the Seller may reasonably request and which is not covered by confidentiality obligations or constitutes attorney/client work product.
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.1. ▇▇▇▇▇▇▇▇▇ Essar Limited
2. ▇▇▇▇▇▇▇▇▇ Essar Mobile Services Limited
3. ▇▇▇▇▇▇▇▇▇ Telecom East Limited
Appears in 1 contract
Sources: Share Purchase Agreement (Hutchison Whampoa LTD /Wav)
Conduct of Claims. In This clause 26.2 shall apply to the event conduct, of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which either party where an indemnity is provided sought under this Contract from the other party, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the Beneficiary and the party giving the indemnity is referred to as the Indemnifier. Accordingly:
26.2.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary;
26.2.2 subject to clauses 26.2.4, 26.2.5 and 26.2.6, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 26.2.1, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) 26.2.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):clause 26.2.2:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification 26.2.4 the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 26.2.2; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 20 Business Days of the notice from the Beneficiary under clause 26.2.2 or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b)clause 26.2.3;
(d) 26.2.5 the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) clause 26.2.2 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary gives any notice pursuant to this clause 26.2.5 then the Indemnifier shall be released from any liability under its indemnity under clause 26.2 (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to clause 26.2.2 in respect of such claim;
(e) 26.2.6 if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(ia) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and;
(iib) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part ; and
26.2.7 either party taking any of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated steps contemplated by clauses 26.2.2 – 26.2.5 shall comply with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterContract.
Appears in 1 contract
Sources: Agreement for the Provision of Integrated Sexual Health and Hiv Services
Conduct of Claims. In Any Indemnified Person shall, promptly after the event receipt of notice of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses action or fines being levied or claimed from a person claim against such Indemnified Person in respect of which an indemnity is provided by the Supplier indemnification may be sought pursuant to ARTICLE 11this Section 10.1, notify the following provisions shall apply:
other Participant(s) from whom it seeks indemnity (a) subject to Sections 11.3(b"Indemnifying Participant(s), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only") of such action or claim. The Indemnifying Participant(s) shall not be obligated to indemnify the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(bIndemnified Person(s) with respect to any such action or claim conducted if the Indemnified Person(s) fails to notify the Indemnifying Participant(s) thereof in accordance with the provisions of this Section 10.1.2 in sufficient time to permit the Indemnifying Participant(s) to defend against such matter and to make a timely response thereto, including any responsive motion or answer to a complaint, petition, notice or other legal, equitable or administrative process relating to the action or claim, but only insofar as such failure to notify the Indemnifying Participant(s) has actually resulted in material prejudice or damage to the Indemnifying Participant(s). In case any such action or claim shall be made or brought against the Indemnified Person(s), the Indemnifying Participant(s) may, or if so requested by the Supplier pursuant Indemnified Person(s) shall, assume the defense thereof with counsel of its selection reasonably acceptable to Section 11.3(a):
the Indemnified Person(s) and reasonably competent and experienced to defend the Indemnified Person(s). In such circumstances, the Indemnified Person(s) shall (ia) at no cost or expense to the Indemnified Person(s), cooperate with the Indemnifying Participant(s) and provide the Indemnifying Participant(s) with such information and assistance as the Indemnifying Participant(s) shall reasonably request in connection with such action or claim and (b) at its own expense, have the right to participate and be represented by counsel of its own choice in any such action or with respect to any such claim. If the Indemnifying Participant(s) has assumed and has reasonably maintained the defense of the relevant claim or action, (y) the Supplier Indemnifying Participant(s) shall keep the person entitled to indemnification fully informed not be liable for any settlement thereof that is made without its consent and consult with it about material elements of the conduct of the claim;
(iiz) the Supplier Indemnifying Participant(s) shall control the settlement of such claim or action, provided, however, that the Indemnifying Participant(s) shall not bring conclude any settlement that requires any action or forbearance from action or payment (unless paid in full by the name of Indemnifying Participant) or admission by the person entitled to indemnification (Indemnified Person(s) or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims of its Affiliates without the prior approval of the Indemnified Person(s). The obligations of an Indemnifying Participant(s) shall not extend to any loss, damage or expense of whatever kind and nature (including all related costs and expenses) to the extent the same results from the taking, after the receipt of notice of such legal action or claim against the Indemnified Person(s), and after the Indemnifying Participant has assumed and is maintaining the defense of such action in accordance with this Section 10.1.2 by the Indemnified Person(s) of any action (unless required by Applicable Law or applicable legal process) which prejudices the successful defense of the action or claim, without, in any such case, the prior written consent of the person entitled to indemnification, Indemnifying Participant(s) (such consent not to be unreasonably withheld required in a case where the Indemnifying Participant(s) has not assumed or delayed;
(chas assumed but has not reasonably maintained the defense of the action or claim). The Indemnified Person(s) a person entitled agrees to indemnification shall afford the Indemnifying Participant(s) or the counsel of the Indemnifying Participant(s) the opportunity to be free present at, and to pay or settle participate in, conferences with all Persons, including Government Authorities, asserting any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreementor action against the Indemnified Person(s) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred covered by the person entitled to indemnification indemnity contained in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect this Section 10.1 or conferences with representatives of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue or counsel for such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterPerson(s).
Appears in 1 contract
Sources: Participation Agreement
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eProject Co Indemnities to Authority) or Clause 49.2 (Authority Indemnities to Project Co) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 49.3.1 to indemnification;
(f) the Supplier 49.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 59 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 59 (Mitigation).
Appears in 1 contract
Sources: Project Agreement
Conduct of Claims. In 7.1 If the event Purchaser becomes aware of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses a matter which constitutes or fines being levied which would or claimed from might give rise to a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall applyClaim:
(a) subject the Purchaser shall as soon as reasonably practicable give notice to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) Management Parties of the matter and shall consult with the Management Parties with respect to the matter provided that no delay or failure in so notifying the Management Parties shall relieve the Management Parties of any liability or obligation hereunder except to the extent of any damage or liability caused by, increased, exacerbated or arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claimfailure;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier Purchaser shall, and shall keep the person entitled to indemnification fully informed and consult with it about material elements ensure that each member of the conduct Purchaser Group will, provide to the Management Parties and their advisers reasonable access to premises and personnel during business hours and to relevant assets, documents and records within the power or control of each member of the claim;
Purchaser Group for the purposes of investigating the matter and enabling the Management Parties to take the action referred to in paragraph (ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayedd);
(c) the Management Parties (at their cost, and subject to completing an undertaking of confidentiality in a person entitled form acceptable to indemnification shall be free the Purchaser, acting reasonably), may take copies the documents or records, and photograph the premises or assets, referred to pay or settle any claim on such terms as it thinks fit in paragraph (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(bb);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationPurchaser shall, and shall provide ensure that each member of the Purchaser Group will take any action and institute any proceedings, and give any information and assistance, as the Management Parties may reasonably request to:
(i) dispute, resist, appeal, compromise, defend, remedy or mitigate the matter;
(ii) enforce against a person (other than a Management Party) the rights of a member of the Purchaser Group in relation to the person entitled to indemnification matter; or
(iii) allow the Management Parties the exclusive conduct of the proceedings, and in each case on the basis that the Management Parties shall indemnify the Purchaser on demand against all reasonable co- operation, access costs and assistance for expenses incurred as a result of a request or nomination by the purposes of considering and resisting such claimManagement Parties;
(e) if the Supplier pays to Purchaser shall not, and shall ensure that no member of the person entitled to indemnification an amount Purchaser Group will, admit liability in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by paymentof, discount, credit, saving, relief or other benefit compromise or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitysettle, the person entitled to indemnification shall forthwith repay to matter without the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value prior written consent of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnificationManagement Parties;
(f) the Supplier Management Parties shall inform not admit liability in respect of, or compromise or settle, the person entitled to indemnification matter without the prior written consent of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterPurchaser.
Appears in 1 contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to12.2.1 NN agrees that:
(i) approval by if it becomes aware of any claims, actions, suits, proceedings (including any government or regulatory investigation), demands, judgments and awards, joint or several (each a “Claim”) relevant insurers (without prejudice for the purpose of sub-clause 12.1 or any matter which may give rise to Section 11.3(f)a Claim, NN shall notify the Lender, on behalf of the indemnified parties thereof and shall provide them with such information and copies of such documents relating to the Claim as the Lender, on behalf of the indemnified parties may reasonably request; and
(ii) it will not, without the Supplier providing prior written consent of the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such actionLender, permit or require the Supplier to dispute the claim on behalf of the person entitled indemnified parties, settle or compromise or consent to indemnification at the Supplier’s own expense and take conduct entry into of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) judgment with respect to any claim conducted by the Supplier pursuant pending or threatened Claim in respect of which indemnification may be sought under sub-clause 12.1 (whether or not any indemnified party is an actual or potential party to Section 11.3(a):
(isuch Claim) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements unless such settlement, compromise or consent includes an unconditional release of the conduct indemnified party from all liability arising out of the claim;
(ii) the Supplier shall such Claim and does not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) include a person entitled to indemnification shall be free to pay or settle any claim on such terms statement as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted an admission of, fault, culpability or instructed, take conduct failure to act by or on behalf of any indemnified party.
12.2.2 Promptly after it becomes aware of any Claim made or threatened within the scope of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnityset out above, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value Lender shall, in strict confidence, notify NN of the saving or benefit obtained) less any out-of-pocket costs and expenses relevant Claim (including legal expenses) properly incurred by indicating the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect nature of the claim under the relevant indemnityallegations being made), provided that there any failure to so notify shall be no not relieve NN of its obligation on the part of the person entitled to indemnification to pursue such recovery indemnify under sub-clause
12.1 unless and that the Supplier is repaid only to the extent that the amount NN did not otherwise learn of such recovery aggregated with action and such failure results in NN being materially prejudiced.
12.2.3 Subject to this sub-clause 12.2.3 NN may elect to participate in the defence of any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification Claim. If it so elects after receipt of the requirements notice referred to in sub-clause 12.2.2, NN may assume the defence of any insurer who the Claim at its own expense with legal advisers chosen by it and reasonably satisfactory to the indemnified party. Notwithstanding such election, the indemnified parties may have an obligation employ separate legal advisers and NN shall bear the reasonable fees and expenses of such separate legal advisers if (i) NN has failed within a reasonable time to provide an indemnity in respect of any liability arising under this Agreement and in relation retain legal advisers reasonably satisfactory to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.Lender;
Appears in 1 contract
Sources: Loan Agreement
Conduct of Claims. In 7.1. Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Officer and to direct the conduct of the Officer in the defence of any claimsClaims.
7.2. Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of an Officer provided that:
(a) subject the Officer shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Officer refuses the engagement of Nominated Counsel to defend the Claim on his behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the Officer at his own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Officer in respect of Personal Counsel Costs unless:
(A) the Officer’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Officer has reasonably determined that there may be a conflict of interest between the Officer and the Company in the defence of a Claim, in which case then the Officer shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Officer shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3. In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Officer:
(a) the Company shall not be liable to indemnification at the SupplierOfficer under this Deed or otherwise for any legal expenses subsequently directly incurred by the Officer in connection with the Officer’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Officer shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Officer is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him; andor
(iii) in connection with an application for relief which is refused, and
(iv) any such amounts shall fall to be repaid not later than:
(v) in the Supplier event of the Officer being convicted in the proceedings, the date when the conviction becomes final; or
(vi) in the event of judgment being given against the Officer in the proceedings, the date when the judgment becomes final; or
(vii) in the event of the Court refusing to grant the Officer relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4. The Officer shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 1 contract
Conduct of Claims. In This clause 26.2 shall apply to the event conduct, of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which either party where an indemnity is provided sought under this Contract from the other party, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the Beneficiary and the party giving the indemnity is referred to as the Indemnifier. Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary; subject to clauses 26.2.4, 26.2.5 and 26.2.6, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 26.2.1, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) clause 26.2.2: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 26.2.2; or
(ii) or the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 20 Business Days of the notice from the Beneficiary under clause 26.2.2 or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) clause 26.2.3; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) clause 26.2.2 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this clause 26.2.5 then the Indemnifier shall be released from any liability under its indemnity under clause 26.2 (eas the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to clause 26.2.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part ; and either party taking any of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated steps contemplated by clauses 26.2.2 – 26.2.5 shall comply with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterContract.
Appears in 1 contract
Sources: Agreement for the Provision of Care and Support Services
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Company under this Clause 6, the following provisions relevant Indemnified Person shall apply:promptly notify the Company in writing of such fact, but failure to do so will not relieve the Company from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) at reasonable intervals keep the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf Company informed of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct progress of the claim;
(ii) provide the Supplier shall not bring Company with copies of such documentation relating to the name of the person entitled to indemnification (or any Group Member thereof) into disreputeclaim as it may reasonably request; and
(iii) maintain reasonable consultation with the Supplier shall not pay or settle such claims without Company regarding decisions concerning the prior consent of claim, subject in each case to the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (Indemnified Person being indemnified and without prejudice secured to its rights reasonable satisfaction against all Losses incurred by it in consequence of its compliance with this Clause 6, and remedies under provided that nothing in this Agreement) ifClause 6 shall:
(i) require any Indemnified Person to provide the Supplier is not entitled toCompany with a copy of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or is not permitted or instructed, take conduct to be privileged whether in the context of any litigation connected with the claim in accordance with Section 11.3(a)or otherwise; or
(iiiv) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Supplier fails Company considers might, either prejudice any insurance cover to comply which it or any other Indemnified Person may from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing of such Indemnified Person or of any other Indemnified Person.
(c) The Company may participate at its own expense in the defence of any material respect such action; provided, however, that legal advisers to the Company shall not (except with the provisions consent of Sections 11.3(athe relevant Indemnified Person) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall also be free at any time to give notice legal advisers to the Supplier that it is retaining Indemnified Person. The Company shall not, without the prior written consent of the relevant Indemnified Person, settle or taking over (as compromise or consent to the case may be) the conduct entry of any defencejudgment with respect to any litigation, disputeor any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Clause 6 (whether or not the Indemnified Person(s) are actual or potential parties thereto), unless such settlement, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofconsent:
(i) includes an amount equal to the sum recovered (unconditional release of each Indemnified Person from all liability arising out of such litigation, investigation, proceeding or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameclaim; and
(ii) the amount paid does not include a statement as to the person entitled or an admission of fault, culpability or a failure to indemnification act by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation or on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements behalf of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Sources: Bond Agreement (Renalytix PLC)
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eProject Co Indemnities to Authority) or Clause 49.2 (Authority Indemnities to Project Co) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 49.3.1 to indemnification;
(f) the Supplier 49.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 59 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 59 (Mitigation).
Appears in 1 contract
Sources: Project Agreement
Conduct of Claims. In 7.1 Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Director and to direct the conduct of the Director in the defence of any claimsClaims.
7.2 Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of a Director provided that:
(a) subject the Director shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his or her behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Director refuses the engagement of Nominated Counsel to defend the Claim on his or her behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the Director at his or her own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Director in respect of Personal Counsel Costs unless:
(A) the Director’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Director has reasonably determined that there may be a conflict of interest between the Director and the Company in the defence of a Claim, in which case then the Director shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Director shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3 In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Director:
(a) the Company shall not be liable to indemnification at the SupplierDirector under this Deed or otherwise for any legal expenses subsequently directly incurred by the Director in connection with the Director’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Director shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Director is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him or her; andor
(iii) in connection with an application for relief which is refused, and any such amounts shall fall to be repaid not later than:
(A) in the Supplier event of the Director being convicted in the proceedings, the date when the conviction becomes final; or
(B) in the event of judgment being given against the Director in the proceedings, the date when the judgment becomes final; or
(C) in the event of the Court refusing to grant the Director relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4 The Director shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 1 contract
Conduct of Claims. In This Clause 36.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 36.3.3, 36.3.4 and 36.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 36.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 36.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 36.3.3 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 36.3.3 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 36.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 36.3.3 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 36.3.5 then the Indemnifier shall be released from any liability under its indemnity under Clause 36.1 (ehubco Indemnities to Authority) or Clause 36.2 (Authority Indemnities to hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 36.3.3 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) of:- an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 36.1 to indemnification;
(f) the Supplier 36.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 44 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 44 (Mitigation).
Appears in 1 contract
Conduct of Claims. In This Clause 36.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 36.3.3, 36.3.4 and 36.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 36.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 36.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 36.3.3 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 36.3.3 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 36.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 36.3.3 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 36.3.5 then the Indemnifier shall be released from any liability under its indemnity under Clause 36.1 (ehubco Indemnities to Authority) or Clause 36.2 (Authority Indemnities to hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 36.3.3 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) of:- an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that that: there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 36.1 to indemnification;
(f) the Supplier 36.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 44 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 44 (Mitigation).
Appears in 1 contract
Sources: Build Only Development Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or and 11.3(b)) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Standing Offer Agreement
Conduct of Claims. In This Clause 63 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this Contract, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
63.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract and any of the Ancillary Documents, or in relation to involvement in any investigation or proceedings by any auditor, inspector or ombudsman, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable together with such further information and documentation he or she may require and in any event within twenty (20) Business Days of receipt of the same;
63.1.2 subject to Clauses 63.1.3, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 63.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured sufficient indemnity to its reasonable satisfaction against all costs costs, charges and expenses (including legal expenses) , actions, demands, proceedings, claims whatsoever that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) 63.1.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):Clause 63.1.2 above:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
63.1.4 the Beneficiary shall (cwithout prejudice to its duty to mitigate) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 63.1.2 above; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (20) Business Days of the notice from the Beneficiary under Clause 63.1.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(aClause 63.1.3 above within twenty (20) or 11.3(b);Business Days of notice from the Beneficiary.
(d) 63.1.5 the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 63.1.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary gives any notice pursuant to this Clause 63.1.3(b), then the Indemnifier shall be released from any liability under its indemnity under Clause 61.1, Clause 61.2 or otherwise (as applicable) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 63.1.2 in respect of such claim;
(e) 63.1.6 if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(ia) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(iib) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, indemnity provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Contract from being recovered from the Indemnifier); and
63.1.7 any person entitled to indemnification;
(f) taking any of the Supplier steps contemplated by this Clause 63.1 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.Contract. 64. NOT USED
Appears in 1 contract
Sources: Residual Waste Treatment Contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Supply Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from 11.1 If a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) member of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the SupplierBuyer’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal becomes aware of any claim or any matter or circumstance which might give rise to a Claim (other than a claim under the Tax Warranties) or of any incidental negotiations) a right of action against or an entitlement to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers recover (whether by payment, discount, credit, savingrelief, relief or other benefit contribution, indemnity or otherwise) from a sum third party an amount which is directly referable relates to the factsubject matter of a Claim:
(a) the Buyer shall as soon as reasonably practicable give written notice to and consult with the Warrantors’ Representatives in respect of the claim, matter, event circumstance or circumstances giving rise entitlement;
(b) subject to the claim under relevant Warrantor(s) indemnifying or securing the indemnityBuyer or the relevant member of the Buyer’s Group in a form reasonably satisfactory to the Buyer against any liability, cost, damage or expense which may be properly incurred thereby (but without thereby implying any admission of liability on the part of such Warrantor), the person entitled Buyer shall, and shall procure that each member of the Buyer’s Group shall, unless the Buyer in its reasonable opinion considers that the goodwill of any Group Company will be materially and adversely affected by such action in which case it may refuse to indemnification shall forthwith repay to the Supplier whichever is the lesser oftake any such action :
(i) an amount equal at the written request and the cost of the Warrantors take such action or permit the Warrantors to take such action as the Warrantors consider appropriate to avoid, dispute, resist, appeal, defend, compromise or settle the Claim (including, without limitation, making any counterclaims or other claims against third parties) and any related adjudication or proceedings, and to conduct matters relating thereto including negotiations or appeals;
(ii) provide to the sum recovered (or the value Warrantors and their advisers reasonable access to premises and personnel and to relevant assets, documents and records within each member of the saving Buyer’s Group’s power or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by control for the person entitled purposes of investigating the matter or entitlement which allegedly gives rise to indemnification in recovering the sameClaim; and
(iiiii) preserve all documents, records, correspondence, accounts, electronically stored data and other information whatsoever relevant to a matter which may give rise to a Claim.
(c) the amount paid to the person entitled to indemnification by the Supplier in respect Warrantors (at their cost) may examine and take copies of the documents or records, and photograph the premises or assets, referred to in paragraph 11.1(b)(ii) above.
11.2 If a Claim (other than a claim under the Tax Warranties) is as a result of, or in connection with, a claim (other than a claim under the Tax Warranties) by or a liability to a third party then, subject to the relevant indemnityWarrantor(s) indemnifying or securing the Buyer or the relevant member of the Buyer’s Group in a form reasonably satisfactory to the Buyer against any liability, provided that there shall cost, damage or expense which may be no obligation properly incurred thereby (but without thereby implying any admission of liability on the part of such Warrantor(s)), the person entitled to indemnification to pursue such recovery Buyer shall and shall procure that each member of the Buyer’s Group shall, unless the Buyer in its reasonable opinion considers that the Supplier is repaid only goodwill of any Group Company will be materially and adversely affected by such action in which case it may refuse to the extent that the amount take any such action:
(a) take all reasonable steps to enforce any right of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnificationrecovery;
(fb) make no admission of liability in respect of, or compromise, dispose of or settle, any claim without the Supplier shall inform the person entitled to indemnification written consent of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordinglyWarrantors; and
(gc) any person entitled allow the Warrantors at their own expense and in their absolute discretion to an indemnity from take such action, as described in paragraph 11.1(b) above, as the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterWarrantors deem necessary.
Appears in 1 contract
Sources: Warranty Agreement (Kennametal Inc)
Conduct of Claims. In 12.2.1. This clause 12.2 shall apply to the event of any claims, statutory fees, costs, charges, penalties conduct by a PLPA from whom an indemnity is sought under this Agreement (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person “the Indemnifier”) in respect of which an claims made by a third person against a PLPA having or claiming to have the benefit of the indemnity is provided (“the Beneficiary”) and conduct by the Supplier pursuant Beneficiary in respect of such claims, but shall apply only to ARTICLE 11the extent compatible with the requirements of any relevant insurer.
12.2.2. If the Beneficiary receives any notice, the following provisions shall apply:
(a) subject to Sections 11.3(b)demand, 11.3(c) and 11.3(d), where letter or other document concerning any claim for which it appears that a person the Beneficiary is or may be become entitled to indemnification from under this Agreement the Supplier Beneficiary shall give notice in respect of all writing to the Indemnifier as soon as reasonably practicable and in any event within five (but not part only5) Working Days of the liability arising out receipt by the Beneficiary of a claimsuch notice, such person demand, letter or other document.
12.2.3. Subject to clauses 12.2.4, 12.2.5, 12.2.7 and 12.2.8 and the giving of notice by the Beneficiary, the Indemnifier shall be entitled (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it the Beneficiary may incur by reason of such action, permit or require action within ten (10) Working Days of the Supplier receipt of such notice from the Beneficiary by the Indemnifier) to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring in the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (Beneficiary and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any the claim (or and of any incidental negotiations) . If the Indemnifier so elects to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationclaim, and the Beneficiary shall provide to give the person entitled to indemnification Indemnifier all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such the claim;.
(e) 12.2.4. With respect to any claim conducted by the Indemnifier, the Indemnifier shall keep the Beneficiary fully informed and consult with it about all material elements of the conduct of the claim and shall not bring the name of the Beneficiary into disrepute.
12.2.5. If the Indemnifier does not elect under clause 12.2.3 to take conduct of a claim or if the Supplier Indemnifier and the Beneficiary at any time agree that the Beneficiary should henceforth have conduct of the claim, then the Beneficiary shall be entitled to conduct the claim and to resist, appeal, compromise or settle the claim. With respect to any claim conducted by the Beneficiary, the Beneficiary shall keep the Indemnifier fully informed and consult with it about all material elements of the claim.
12.2.6. Any PLPA who is under an obligation to consult with another PLPA under clause 12.2.4 or clause 12.2.5 shall have regard in good faith to any views expressed by the other PLPA.
12.2.7. If the Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matterevent, event matter or circumstances giving rise raise to the claim under the indemnity, then the person entitled to indemnification Beneficiary shall forthwith repay pay to the Supplier Indemnifier whichever is the lesser of:
(i) an of the amount equal to paid by the Indemnifier or the sum recovered (or by the value Beneficiary.
12.2.8. Any Party taking any of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled steps mentioned in clauses 12.2.1 to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there 12.2.7 shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated comply with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer insurer, who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such of the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnifier.
Appears in 1 contract
Sources: Inter Council Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b8.2(b), 11.3(c8.2(c) and 11.3(d)8.2(d) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f8.2(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):8.2(a) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)8.2(a) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a8.2(a) or 11.3(b)and 8.2(b) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 8 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a8.2(a) above applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Equipment Rental Agreement
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Company under this Clause 6, the following provisions relevant Indemnified Person shall apply:promptly notify the Company in writing of such fact, but failure to do so will not relieve the Company from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) at reasonable intervals keep the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf Company informed of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct progress of the claim;
(ii) provide the Supplier shall not bring Company with copies of such documentation relating to the name of the person entitled to indemnification (or any Group Member thereof) into disreputeclaim as it may reasonably request; and
(iii) maintain reasonable consultation with the Supplier shall not pay or settle such claims without Company regarding decisions concerning the prior consent of claim, subject in each case to the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (Indemnified Person being indemnified and without prejudice secured to its rights reasonable satisfaction against all Losses incurred by it in consequence of its compliance with this Clause 6, and remedies under provided that nothing in this Agreement) ifClause 6 shall:
(i) require any Indemnified Person to provide the Supplier is not entitled toCompany with a copy of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or is not permitted or instructed, take conduct to be privileged whether in the context of any litigation connected with the claim in accordance with Section 11.3(a)or otherwise; or
(ii) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Supplier fails Company considers might, either prejudice any insurance cover to comply which it or any other Indemnified Person may from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing of such Indemnified Person or of any other Indemnified Person.
(c) The Company may participate at its own expense in the defence of any material respect such action; provided, however, that legal advisers to the Company shall not (except with the provisions consent of Sections 11.3(athe relevant Indemnified Person) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall also be free at any time to give notice legal advisers to the Supplier that it is retaining Indemnified Person. The Company shall not, without the prior written consent of the relevant Indemnified Person, settle or taking over (as compromise or consent to the case may be) the conduct entry of any defencejudgment with respect to any litigation, disputeor any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Clause 6 (whether or not the Indemnified Person(s) are actual or potential parties thereto), unless such settlement, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofconsent:
(i) includes an amount equal to the sum recovered (unconditional release of each Indemnified Person from all liability arising out of such litigation, investigation, proceeding or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameclaim; and
(ii) the amount paid does not include a statement as to the person entitled or an admission of fault, culpability or a failure to indemnification act by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation or on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements behalf of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Sources: Second Amendment and Restatement Agreement (Renalytix PLC)
Conduct of Claims. In This Clause 63 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this Contract, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
63.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract and any of the Ancillary Documents, or in relation to involvement in any investigation or proceedings by any auditor, inspector or ombudsman, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable together with such further information and documentation he or she may require and in any event within twenty (20) Business Days of receipt of the same;
63.1.2 subject to Clauses 63.1.3, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 63.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured sufficient indemnity to its reasonable satisfaction against all costs costs, charges and expenses (including legal expenses) , actions, demands, proceedings, claims whatsoever that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) 63.1.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):Clause 63.1.2 above:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
63.1.4 the Beneficiary shall (cwithout prejudice to its duty to mitigate) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 63.1.2 above; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (20) Business Days of the notice from the Beneficiary under Clause 63.1.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(aClause 63.1.3 above within twenty (20) or 11.3(b);Business Days of notice from the Beneficiary.
(d) 63.1.5 the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 63.1.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary gives any notice pursuant to this Clause 63.1.3(b), then the Indemnifier shall be released from any liability under its indemnity under Clause 61.1, Clause 61.2 or otherwise (as applicable) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 63.1.2 in respect of such claim;
(e) 63.1.6 if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(ia) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(iib) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, indemnity provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Contract from being recovered from the Indemnifier); and
63.1.7 any person entitled to indemnification;
(f) taking any of the Supplier steps contemplated by this Clause 63.1 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterContract.
Appears in 1 contract
Sources: Residual Waste Treatment Contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) : subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) : approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) and the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) ): the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) and the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) ; a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) : the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) or the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) ; the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) ; if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) ; the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) and any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Sources: Supply Agreement
Conduct of Claims. In the event of If any claimsaction, statutory feesproceeding, costs, charges, penalties claim or demand (including without limitation "Proceedings") shall be brought or asserted against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Manager in respect of which an indemnity is provided may be sought from the Issuer and the Guarantor as contemplated in sub-clause 6.1, such Manager shall promptly notify the Issuer and the Guarantor in writing thereof. The Issuer and the Guarantor, acting jointly, may elect to assume the defence of such Proceedings in which case they shall retain reputable lawyers approved by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
relevant Manager (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
) in each relevant jurisdiction, if more than one, and shall be liable to pay the fees and expenses of such lawyers relating to such Proceedings (c) a person provided, however, that the Issuer and the Guarantor, acting jointly, shall not be entitled to indemnification so assume the defence, if at the time of such election, any of the events specified in Condition 8(a)(iv) to (viii) or (xi) (Events of Default) have occurred or are continuing). In any Proceedings with respect to which the Issuer and the Guarantor, acting jointly, have elected to assume the defence of any Proceedings, the relevant Manager shall have the right to retain its own lawyers in each relevant jurisdiction, if more than one, and to participate fully in the defence of such Proceedings (and in any event shall be free to pay or settle any claim on kept informed and consulted in detail about the defence of such terms as it thinks fit (proceedings) but the fees and without prejudice to its rights and remedies under this Agreement) ifexpenses of such lawyers shall be at the expense of such Manager unless:
(i) 6.2.1 the Supplier is not entitled to, or is not permitted or instructed, take conduct Issuer and the Guarantor and such Manager shall have mutually agreed to the retention of the claim in accordance with Section 11.3(a)such lawyers; or
6.2.2 the named parties to any such Proceedings (iiincluding any joined parties) include the Supplier fails Issuer and the Guarantor and such Manager and representation of the Issuer and the Guarantor and such Manager by the same lawyers (in the relevant jurisdiction, in the discretion of such Manager), would be inappropriate due to comply actual or potential differing interests between them or actual or potential differing defences available to them; or
6.2.3 the Issuer and the Guarantor have failed to retain reputable lawyers approved by such Manager (such approval not to be unreasonably withheld or delayed) in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification relevant jurisdiction pursuant to ARTICLE 11 its obligation to do so under this Clause 6.2. The Issuer and the Guarantor, acting jointly, will not settle any Proceedings without the written consent of the relevant Manager. Nothing herein shall be free at any time affect the position of the parties hereto pursuant to give notice Clause 6.1 in the event that the Issuers and the Guarantor, acting jointly, do not elect to assume the Supplier that it is retaining or taking over (as the case may be) the conduct defence of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterProceedings.
Appears in 1 contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject This Section 56.3 shall apply to the conduct of claims, made by a third person against a Party having, or claiming to have, the benefit of an indemnity pursuant to this Project Agreement. The Party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the Party giving the indemnity is referred to as the “Indemnifier”.
(b) If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Section 56, the Beneficiary shall give written notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Business Days of receipt of the same. Such notice shall specify with reasonable particularity, to the extent that information is available, the factual basis for the claim and the amount of the claim.
(c) Subject to Sections 11.3(b56.3(d), 11.3(c56.3(e) and 11.3(d56.3(f), on the giving of such notice by the Beneficiary, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (all, but not part only) , of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its the Beneficiary’s reasonable satisfaction against all costs and expenses (including legal expenses) that it the Beneficiary may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;. The Beneficiary shall have the right to employ separate counsel in respect of such claim and the reasonable fees and expenses of such counsel shall be to the account of the Indemnifier only where representation of both the Indemnifier and Beneficiary by common counsel would be inappropriate due to any actual or potential conflicting interests between the Indemnifier and Beneficiary.
(bd) with With respect to any claim conducted by the Supplier pursuant to Section 11.3(a):Indemnifier:
(i) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier Indemnifier shall not bring the name or reputation of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; andAmended and Restated Project Agreement Ottawa Light Rail Transit Project REDACTED Execution Version CONFIDENTIAL AND PROPRIETARY Page 204 CAN: 26350049.2 BD-#30398459-v2
(iii) the Supplier Indemnifier shall not pay pay, compromise or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(civ) the Indemnifier shall not admit liability or fault to any third party without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed; and
(v) the Indemnifier shall use commercially reasonable efforts to have the Beneficiary named as a person entitled beneficiary under any release given by the persons bringing the claim to indemnification which this Section 56.3 relates.
(e) The Beneficiary shall be free to pay or settle any such claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Project Agreement if:
(i) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a56.3(c); or;
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 10 Business Days of the notice from the Beneficiary under Section 56.3(b) or notifies the Beneficiary that the Indemnifier does not intend to take conduct of the claim; or
(iii) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(bSection 56.3(d);.
(df) the person entitled to indemnification pursuant to ARTICLE 11 The Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it the Beneficiary is retaining or taking over (over, as the case may be) , the conduct of any defence, dispute, compromise or appeal of any claim (claim, or of any incidental negotiations) , to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.which
Appears in 1 contract
Sources: Project Agreement
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnified’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within [10 Working Days] of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Supplier or the Supplier Party are the Beneficiary and the conduct of which the Commissioner or Supplier acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Supplier or the Supplier Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 1 contract
Conduct of Claims. In 11.14.1 The Contractor shall be entitled to bring a claim in the event name of the Authority against any supplier or manufacturer for breach of any claimsguarantee, statutory fees, costs, charges, penalties condition or warranty referred to in Clause 11.13 (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Warranties in respect of which an indemnity is Legacy Assets), provided by the Supplier pursuant to ARTICLE 11, the following provisions shall applythat:
(aA) subject to Sections 11.3(b), 11.3(cthe Contractor fully indemnifies the Authority against all Claims and Losses in connection with the making of any claim thereunder;
(B) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier Contractor gives such security in advance in respect of all (but not part only) of such indemnity as the liability arising out of a claim, such person entitled to indemnification Authority may at its sole election and subject to:deem reasonably appropriate;
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(iiC) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the such claim and of any incidental negotiations; provided that the person entitled to indemnification negotiations shall give the Supplier (provided be at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claimContractor's expense;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(iD) the Supplier shall keep Contractor keeps the person entitled to indemnification Authority fully informed and consult with it about material elements of the conduct of the any such claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iiiE) the Supplier Contractor's entitlement in respect of any matter to which Clause 11.13.2 or this Clause 11.14 applies shall be limited to the amount recovered by the Authority from the supplier or manufacturer of any guarantee, condition or warranty from which the Authority may benefit in respect of the Claim or Loss referred to in Clause 11.13.2. This Clause 11.14.1(E) shall not pay limit or settle such claims without the prior consent otherwise prejudice any right or entitlement of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification Contractor arising other than pursuant to ARTICLE 11 Clause 11.13.2 or this Clause 11.14.
11.14.2 The Authority shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification Contractor all reasonable co- co operation, access and assistance for the purposes of considering making any such claim under Clause 11.13 and resisting such claim;this shall include:
(eA) if subject to Clause 11.14.3, providing the Supplier pays Contractor with copies of all relevant contracts between the Authority and its suppliers and manufacturers whether appointed before or after the Execution Date; and
(B) paying to the person entitled to indemnification an amount Contractor any proceeds received by the Authority from or on behalf of any of its suppliers and manufacturers in respect of an indemnity and any such claims.
11.14.3 Nothing in Clause 11.14.2(A) shall oblige the person entitled Authority to:
(A) provide to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum the Contractor any information which is directly referable not in the Authority's possession or not in the possession of the Authority's agents, officers or employees or which the Authority does not have a contractual right to require the production of; and
(B) disclose to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofContractor any information which:
(i) an amount equal it would not be required to disclose pursuant to the sum recovered (or the value Freedom of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameInformation ▇▇▇ ▇▇▇▇; andor
(ii) if disclosed, would result in the amount paid Authority being held liable for breaching any of its obligations or prejudicing any of its rights pursuant to the person entitled contract to indemnification by which the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterinformation relates.
Appears in 1 contract
Sources: Project Agreement
Conduct of Claims. In the event of that any claims, statutory fees, costs, charges, penalties (including without limitation claim is made against the Seller and/or any legal costs), contributions, compensations, cost recoveries, expenses Group Company under any Transaction Agreement and the Purchaser and/or the Purchaser Nominee are/is included in or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant joined to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toclaim then:
(i) approval no admissions in relation to such third party claim shall be made by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at Purchaser, the Supplier’s own expense and take conduct of Purchaser Nominee or any defence, dispute, compromise, or appeal other member of the Purchaser's Group and the claim and shall not be compromised, disposed of any incidental negotiations; provided that or settled without the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements written consent of the conduct of the claimSeller;
(ii) the Supplier Seller shall not bring be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the person entitled Purchaser or other member of the Purchaser's Group concerned and to indemnification (have the conduct of any related proceedings, negotiations or any appeals and in that connection the Purchaser shall give or cause to be given instructions to such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser's Group Member thereof) into disrepute; andconcerned but in accordance with the Seller's instructions;
(iii) the Supplier Purchaser shall, and the Purchaser shall not pay or settle such claims without the prior consent procure any other members of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise Purchaser's Group relevant to the claim under the indemnityshall, the person entitled to indemnification shall forthwith repay give to the Supplier whichever is the lesser of:
(i) an amount equal Seller, subject to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket their being paid all reasonable costs and expenses (including legal expenses) properly incurred by the person entitled and indemnified to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of their reasonable satisfaction against any liability arising under this Agreement or damages incurred thereby, all such information and in relation assistance including access to such premises and personnel, and the person entitled right to indemnification shall issue instructions accordingly; andexamine any assets, accounts, documents and records, as the Seller may reasonably request and which is not covered by confidentiality obligations or constitutes attorney/client work product. SCHEDULE 3 PRINCIPAL SUBSIDIARY COMPANIES
1. ▇▇▇▇▇▇▇▇▇ Essar Limited
2. ▇▇▇▇▇▇▇▇▇ Essar Mobile Services Limited
3. ▇▇▇▇▇▇▇▇▇ Telecom East Limited
4. Fascel Limited
5. Aircel Digilink India Limited
6. ▇▇▇▇▇▇▇▇▇ Essar South Limited
7. ▇▇▇▇▇▇▇▇▇ Telecommunications (gHong Kong) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.Limited
8. ▇▇▇▇▇▇▇▇▇ Global Communications Holdings Limited
9. BFKT (Thailand) Limited 10. ▇▇▇▇▇▇▇▇▇ CAT Wireless MultiMedia Limited
Appears in 1 contract
Sources: Share Purchase Agreement (Orascom Telecom Holding S.A.E.)
Conduct of Claims. In (1) Whenever a claim for indemnification shall arise under this Section, the event party seeking indemnification (the "Indemnified Party"), shall notify the party from whom such indemnification is sought (the "Indemnifying Party") in writing of the Proceeding and the facts constituting the basis for such claim in reasonable detail;
(2) Upon delivery of such notice, such Indemnified Party shall have a duty to take all reasonable steps to mitigate any claimslosses, statutory feesliabilities, costs, chargescharges and expenses relating to any such Proceeding;
(3) Such Indemnifying Party shall have the right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided, penalties however, that counsel to the Indemnifying Party shall not (including except with the consent of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circum stances; and
(4) No Indemnifying Party shall, without limitation any legal coststhe prior written consent of the Indemnified Parties (which consent shall not be un reasonably withheld), contributionssettle or compromise or consent to the entry of any judgment with respect to any litigation, compensationsor any investigation or proceeding by any governmental agency or body, cost recoveriescommenced or threatened, expenses or fines being levied or claimed from a person any claim whatsoever in respect of which indemnification could be sought under this Section unless such settlement, compromise or consent (A) includes an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification unconditional release of each Indemnified Party from the Supplier in respect of all (but not part only) of the liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a claimstatement as to or an admission of fault, such person entitled culpability or a failure to indemnification may at its sole election and subject to:
(i) approval act by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 1 contract