Conduct of Claims. 5.1 If the Buyer or the Company becomes aware of any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right. 5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right. 5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question. 5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable. 5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered. 5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Shares (Nyfix Inc), Agreement for the Sale and Purchase of Shares (Nyfix Inc)
Conduct of Claims. 5.1 If (a) When the Buyer or Purchaser receives notice of any claim made by third parties against the Company becomes aware which is the basis for a claim for indemnification (a “Third Party Claim”) or where the Purchaser has any other claim for indemnification other than a Third Party Claim which is the basis for a claim for indemnification (the “Other Claims”), the Purchaser shall give written notice to the Seller. Such notice shall contain in reasonable detail: (i) a description of any matter the facts and the nature of the claim; (ii) a description of the grounds on which it believes would or might the Purchaser considers that the facts give rise to a Warranty Claim liability for Losses by the Seller under this Agreement; (taking no account iii) the amount claimed, if known at that time; and (v) any relevant background documentation relating to the claim in the possession of paragraph 1.2 for these purposesthe Purchaser or the Company.
(b) The notice of Third Party Claims and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy notice of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute Other Claims shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel given no later than 30 (who shall act as expert and not as arbitratorthirty) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date Purchaser became aware thereof. Any notice received by the Seller on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall any day thereafter will be deemed never to have been liable be time-barred and may not cause any liability by the Seller, independent of whether the claim should turn out to be essential and justified.
(c) The Purchaser shall, and shall procure that the Company shall, take any action concerning Third Party Claims and give all the relevant information to the Buyer Seller and its consultants.
(d) The Seller shall have the right to participate, and, to the maximum extent permitted by Applicable Law, join, at its costs, by attorneys or consultants of its choosing, in respect the defence of any claim, action, suit or proceeding asserted or initiated against the Purchaser and/or the Company constituting the subject matter of a notice to the Seller of the Amount Recoveredkind referred to under Paragraph 8.6(a) above.
5.6 For (e) The Purchaser shall not, and shall procure that the purposes Company shall not, make any admission of paragraph 5.5 of this scheduleliability, the "Amount Recovered" shall be equal to so much of the sum agreement, settlement or benefit received by reason of the enforcement of compromise with any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer third party in relation to such Warranty Claim any claim without the prior written consent of the Seller; provided, however, that if a firm offer to settle is made to the Company or to the Purchaser and the Seller, but not the Purchaser, is willing to accept, the Purchaser and/or the Company (as the case may be) shall be free not to enter into such settlement and to commence or continue litigation, at their own expense, and the payment by or on behalf Seller’s liability shall be limited to the amount of the Sellers in satisfaction proposed settlement.
(f) Within 30 (thirty) Business Days from receipt of the relevant Warranty Claimnotice in accordance with Paragraphs 8.6(a) and 8.6(b), less any Taxation payable the Seller may send a written notice to the Purchaser in accordance with Article 12 stating:
(i) that the claim is covered by the Buyer or provisions set forth under this Agreement and whether the Company in respect of that receipt and less all reasonable costs and expenses same:
(A) accepts the amount of the Buyer claim, in which case the Seller shall, according to Paragraph 8.2(e), pay the amount of the claim in the form and within the Company time period to be agreed between the Parties;
(B) does not consider that the amount of the claim is correct, in recovering which case any of the Parties may start the proceeding contemplated in Article 14 unless a different agreement is reached by the Parties;
(ii) that receipt or savingthe claim is not covered under this Agreement and that it has no obligation to indemnify any Loss. In this case, any of the Parties may start the arbitration proceedings contemplated in Article 14.
Appears in 2 contracts
Sources: Quota Sale and Purchase Agreement, Quota Sale and Purchase Agreement (Evoqua Water Technologies Corp.)
Conduct of Claims. 5.1 If 4.7.1 The Service Provider undertakes to:
(a) notify the Buyer or the Company Authority in writing as soon as reasonably practicable after it becomes aware of the occurrence of any matter event which it believes would or might may give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and claim against the Buyer Service Provider or the Company has a right to make recovery or claim indemnity from any third party (including Authority under any policy of insuranceinsurance required by this Contract where the claim exceeds (or is expected to exceed) £100,000 and relates to the Project;
(b) keep the Authority fully informed of subsequent action and developments in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurancenotified pursuant to Clause 4.7.1(a);
(c) in respect not settle or compromise any claim notified or which ought to have been notified under Clause 4.7.1(a) without the Authority's prior written consent (not to be unreasonably delayed); and
(d) procure that its Sub-contractors give undertakings (which shall ensure for the benefit of the matter giving Authority) identical to those given by the Service Provider under this Clause 4.7.1.
4.7.2 The Service Provider agrees that the Authority has the right to control the conduct of proceedings in relation to any claim arising from the operation and maintenance of the Removal Centre from third parties, including employees of the Parties hereto, to which the Authority is or may become a party.
4.7.3 The Authority agrees:
(a) not to settle or compromise any claim exceeding £100,000 for which the Service Provider is liable to indemnify the Authority under Clause 4.1 (Service Provider Indemnity) above without prior consultation with the Service Provider; and
(b) to keep the Service Provider reasonably informed as to the progress and status of any such claim until such claim is settled or withdrawn.
4.7.4 If, in controlling and contesting any claim, the Authority takes or fails to take any action which it might reasonably be expected to take or not take and as a direct result the Service Provider reasonably incurs Losses greater than that which it might otherwise have incurred, the Authority shall indemnify the Service Provider for all such additional Losses as is reasonable and properly evidenced, provided that the Service Provider has:
(a) given as much prior notice of Losses as is practicable to the Authority; and
(b) given the Authority full particulars of the failure or action which gives rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, Losses as soon as is reasonably practicable, as practicable (such particulars to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost be to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingAuthority).
Appears in 1 contract
Sources: Services Agreement
Conduct of Claims. 5.1 If the Buyer or the Company becomes aware of any fact, matter or circumstance which it believes would or might may give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and claim under the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty ClaimWarranties, the Buyer shall promptly notify give notice of such fact, matter or circumstance to the Sellers Seller as soon as reasonably practicable and in any event within 10 Business Days of becoming aware of any such fact, matter or circumstance. If any claim is made against the Buyer or any member of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of Buyer’s Group by any third party which may in turn lead to a claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and by the Buyer or, in default against the Seller under the Warranties then:
(a) the Buyer shall:
(i) give notice of agreement on or before such claim to the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, Seller as soon as is reasonably practicable, practicable after the Buyer becomes aware of it;
(ii) keep the Seller promptly and fully informed as to which the progress of any such claim and shall, subject to the Seller entering into such confidentiality agreements and indemnities as the Buyer may reasonably require, procure that the Seller is promptly sent copies of all relevant communications and other documents (written or otherwise) transmitted to any other party to any proceedings or their agents or professional advisers (including, without limitation, pleadings and any opinion or advice of counsel relating to any proceedings against any third parties);
(iii) comply with all reasonable requests of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability Seller in relation to such Warranty Claim or potential Warranty Claim claim including (without limitation) giving the Seller access to premises, personnel, documents and records for the purpose of investigating the matters giving rise to such claim and conducting, defending and appealing any claim relating to such matter;
(iv) not (and shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf procure that no member of the Sellers in satisfaction of a Warranty ClaimBuyer’s Group shall) accept or pay or compromise any such liability or claim, then the Buyer shall pay the Amount Recovered consent to the Sellers on entry of any judgment or before admit or concede any liability without the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect prior written consent of the Amount Recovered.Seller (such consent not to be unreasonably withheld or delayed);
5.6 For (b) the purposes Seller shall have the right at any time to assume and thereafter conduct the defence of paragraph 5.5 any such claim with counsel of this schedule, their choice at the "Amount Recovered" shall be equal to so much cost of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.Seller;
Appears in 1 contract
Conduct of Claims. 5.1 If 11.1 Upon the Buyer Purchaser or the Company becomes becoming aware of any a potential claim, action, demand or other matter (a “Relevant Matter”) which it believes constitutes or which would or might give rise to a Warranty an Indemnity Claim (taking no account or an Excluded Claim, irrespective of paragraph 1.2 whether the Seller may be held jointly liable for these purposes) such matter, the Purchaser shall, and the Buyer or shall procure that the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that mattershall, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be:
(A) within twenty-five (25) Business Days notify the Seller by written notice of such Relevant Matter;
(B) subject to the Seller agreeing to pay all reasonable out of pocket expenses of the Purchaser and/or the Company, take such action and give such information and access (during normal working hours) to personnel, premises, chattels, documents and records to the Seller and its professional advisers as the Seller may reasonably request for the purposes of investigating such Relevant Matter and enabling the Seller to take the action referred to in sub paragraph 11.1(C) below;
(C) if so required by the Seller:
(1) to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend, appeal or remedy such Relevant Matter or the matters which will or are likely to give rise to such Relevant Matter; and/or
(2) make no admission of involvement or of liability, agreement, settlement or compromise with any Third Party in relation to any such Relevant Matter without the prior written consent of the Seller such consent not to be unreasonably withheld, delayed or conditioned; and
(3) keep the Seller fully informed as to the progress of any Relevant Matter and the defence thereof and provide the Seller with copies of all correspondence relating to such Relevant Matter within ten (10) Business Days of receiving or sending such correspondence and otherwise keep the Seller fully informed of the status of such Relevant Matter including, without limitation, by:
(a) providing the Seller with draft copies of any correspondence that the Purchaser or the Company intends to send;
(b) reflecting in such correspondence any reasonable comments that the Seller might have;
(c) informing the Seller about its proposed conduct of the Relevant Matter and reflecting any reasonably comments that the Seller might have about such conduct; and
(4) disclose in writing to the Seller all reasonable information and documents relating to the Relevant Matter.
(D) If requested by the Seller for the purposes of investigating the Relevant Matter or the matters which will or are likely to give rise to a Relevant Matter, give the Seller and its professional advisers reasonable access to:
(1) the payment by or on behalf personnel of the Sellers Purchaser and/or the Company in satisfaction order to interview the personnel; and
(2) any relevant premises, chattels, accounts, documents and records within the power, possession or control of the relevant Warranty ClaimPurchaser and/or the Company in order to, less at the Seller’s own expense, examine and photograph the premises and chattels and to examine, photograph and take copies of the accounts, documents and records; and
(3) take reasonable action to mitigate any Taxation payable loss suffered by the Buyer or it, any member of the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingsuch Relevant Matter.
Appears in 1 contract
Conduct of Claims. 5.1 If the Buyer fact, matter, event or the Company becomes aware of any matter which it believes would or might circumstance that may give rise to a Warranty Deed Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer relates to or the Company has is in connection with an actual or threatened claim, action or demand by or liability to a right to make recovery or claim indemnity from any third party (including under a third party claim) then:
(a) the Purchaser shall consult with the Seller prior to making any policy admission of insurance) liability, agreement or compromise with any person, body or authority in relation to that mattersuch matter and the Purchaser shall, then at the Buyer shall promptly notify the Sellers written request of the right.Seller:
5.2 If (i) if so requested, permit the Seller to participate in all matters relating to the third party claim including the appointment of lawyers and other professional advisers, the conduct of all proceedings and the making of any sum is paid by settlement or on behalf compromise of the Sellers in satisfaction third party claim but without prejudice to the rights of a Warranty Claim, the Purchaser or any member of the Purchaser Group to deal with such matter; and
(ii) allow the Seller reasonable access to information and to employees of the Buyer Purchaser or the Company has relevant Subsidiary of the Purchaser, or subsequently acquires a right any other relevant member of the Purchaser Group relating to make recovery such matters within the control of the Purchaser; provided that the Seller shall give reasonable notice of any access to information or claim indemnity from any Employees which may be requested and provided further that the provision of such access does not unreasonably interfere with the operation of the business of the Purchaser Group for the purpose of avoiding, contesting, disputing, resisting, appealing, compromising or defending the third party claim; and
(including under b) the Purchaser shall in any policy of insurance) event keep the Seller informed as to the steps which are being taken in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult connection with the Sellers with respect third party claim; provided, however, that the Purchaser shall not be required to do anything which could adversely impact the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability legal and/or litigation privilege in respect of any third party claim should be admitted or whether information relating to such matter; provided that claim should be settled or compromised, liability the failure to so inform the Seller shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with relieve the provisions Seller of this paragraph. Any such dispute shall be referred its obligations hereunder except to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered (and only to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may beextent that) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingSeller has been prejudiced thereby.
Appears in 1 contract
Conduct of Claims. 5.1 If 44.1 The Supplier agrees (and shall procure that its Sub-contractors agree) that the Buyer or Authority has the Company becomes aware sole right, on giving written notice to such effect to the Supplier at any time, to control of any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) proceedings in relation to that matter, then the Buyer shall promptly notify the Sellers any Third Party Claim (including any claim by employees of the rightParties), regardless of whether the Supplier (or any Sub-contractor) is also a party to such proceedings.
5.2 If 44.2 The Authority agrees that it shall not settle or compromise any sum Third Party Claim giving rise to losses exceeding £10,000 (ten thousand pounds) for which the Supplier is paid by liable to indemnify or on behalf compensate any Commissioning Body 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.
44.3 If, in contesting, settling or compromising any Third Party Claim, the Authority takes or fails to take any action which prejudices any entitlement of the Sellers in satisfaction Supplier to recover any portion of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including insurer under any insurance policy maintained by the Supplier in accordance with this Contract, the liability of insurance) the Supplier to indemnify or compensate any Commissioning Body in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party such claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by such portion.
44.4 The Supplier undertakes that:
44.4.1 it shall not, without the Amount RecoveredApproval of the Authority, settle or compromise any claim (whether insured or uninsured) to which the Authority or another Commissioning Body is, or if is likely to become, a party;
44.4.2 where a claim 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 sum has already been paid claim exceeding £10,000 (ten thousand pounds) without prior consultation with the Authority; and
44.4.3 it shall ensure that its Sub-contractors give undertakings identical to those given by or on behalf of the Sellers in satisfaction Supplier to the Authority under this Clause 44.
44.5 If conduct of a Warranty Claim, then claim is so assumed by the Buyer shall pay the Amount Recovered Authority pursuant to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this scheduleClause 44, the Sellers Authority shall be deemed never to have been liable to hold the Buyer in respect Supplier and its insurers harmless against all or any Losses which either of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received them may incur by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf its conduct of the Sellers in satisfaction claim and any settlement of the relevant Warranty Claim, less any Taxation payable by claim or judgment being given if the Buyer settlement is made without their consent (such consent not to be unreasonably withheld or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingdelayed).
Appears in 1 contract
Conduct of Claims. 5.1 4.1 If the Buyer or the Company becomes aware of any matter which it believes would or might give rise to receives a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty ClaimTaxation, the Buyer shall promptly notify as soon as reasonably possible but no later than 10 business days after receipt procure that the Company shall as soon as reasonably practicable give notice thereof to the Sellers provided that delivery of such notice is not a condition precedent to the liability of the rightSellers under this Schedule.
5.3 The 4.2 Subject to paragraph 4.3 and 4.4, the Buyer shall have conduct of procure that the Company takes such action to avoid, dispute, resist, appeal, compromise or contest any and all litigation or negotiation provided that it shall continue to consult with Claim for Taxation as the Sellers with respect to the matter in question.may reasonably request provided that:
5.4 If there is any dispute between the Sellers and (a) the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any obliged to procure any such dispute shall be referred to leading counsel agreed between action unless the Sellers have indemnified and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of secured the Buyer and the Company to their reasonable satisfaction against any liabilities, costs or expenses (including additional Taxation) which may be incurred thereby;
(b) the Sellers shall not be entitled to require the Company to delegate the conduct of such action to itself of any professional agent or advisor of the Sellers;
(c) neither the Buyer nor the Company shall be obliged to take any action requested by the Sellers which could reasonably be said to be frivolous or vexatious or which could adversely affect their future Taxation position.
4.3 The Company shall not be obliged to comply with any request of the Sellers which involves contesting any Claim for Taxation before any court or other appellate body unless the Sellers obtains the written opinion of Leading Tax Counsel that such contest will, on the balance of probabilities, be successful.
4.4 The Buyer and the Company shall be free to take such action as they may in recovering their absolute discretion think fit and without prejudice to their rights and remedies under this Schedule if within 28 days of service of the notice under paragraph 4.1 the Sellers fail to notify the Buyer of their intention to resist such Taxation or fail within that receipt period to give the indemnity and security referred to in paragraph 4.2(a).
4.5 Paragraph 4.2 shall not apply if any of the Sellers or savingthe Company has committed acts or omissions which constitute or are alleged to constitute fraud, wilful default or negligent conduct.
Appears in 1 contract
Conduct of Claims. 5.1 3.1 If the Buyer or the Company Purchaser becomes aware of that any matter which it believes would or might may give rise to a Warranty Claim claim against the Vendor under the Warranties notice of that fact shall be given as soon as reasonably practicable to the Vendor and in any event within ten working days of becoming so aware;
3.2 Without prejudice to the validity of the claim or alleged claim in question, the Purchaser shall, and shall procure that the Company shall, for the purpose of investigating the matter or circumstances alleged to give rise to such claim, and whether and to what extent any amount is payable in respect of such claim give the Vendor and its accountants and professional advisers all such information and assistance as the Vendor or its accountants or professional advisers may reasonably request, including (taking no account of paragraph 1.2 for these purposesupon reasonable notice and at reasonable times) access to premises and personnel and the Buyer or the Company has a right to make recovery examine and copy or claim indemnity from photograph any third party (including under any policy of insurance) assets, accounts, documents and records in relation to the matter or circumstance alleged to give rise to such claim or in relation to the issue of whether and to what extent any amount is payable in respect of such claim provided that matter, then nothing in this paragraph 3 shall require disclosure to the Buyer shall promptly notify Vendor of or the Sellers giving of access to any information protected by legal privilege or which is advice relating to the rightvalidity of a claim by the Purchaser under this Agreement or the Tax Deed.
5.2 3.3 If any sum the claim in question is paid a result of or in connection with a claim by or liability to a third party then:
(i) subject as provided in paragraph (ii) below no admission of liability shall be made by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer Purchaser or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be compromised, disposed of or settled without the consent of the Vendor (such consent not to be unreasonably withheld or comprised, other than in accordance with delayed);
(ii) the provisions of this paragraph. Any such dispute Vendor shall be referred entitled at its own expense in its absolute discretion to leading counsel agreed between the Sellers and the Buyer ortake such action as it shall deem necessary to avoid, in default of agreement on dispute, deny, defend, resist, appeal, compromise or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers contest such claim or the Buyerliability (including, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers without limitation, making counterclaims or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result other claims against third parties) in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision name of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer Purchaser or the Company and to have the conduct of any related proceedings, negotiations or appeals; PROVIDED ALWAYS THAT if the Purchaser is able to produce reasonable evidence that commencement of proceedings would materially prejudice the goodwill of the Company, the Vendor shall not be entitled to proceed unless the Vendor is able to produce evidence in respect the form of an opinion of a leading counsel who is reasonably acceptable to the Purchaser that, on the evidence then available to him, the claim in question has a prima facie chance of success and provided further that receipt and less in the event that the case is decided against the Vendor (or the person on whose behalf it has pursued such claim), the Vendor shall be liable for the full amount of any award or judgment made; and
(iii) the Purchaser will give, subject to an undertaking by the Vendor to pay all reasonable costs and expenses thereof, 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 or liability as the Vendor or its professional advisers reasonably request. The Vendor agrees to keep all such information confidential and only to use it for such purpose;
(iv) in connection with any proceedings conducted by the Vendor pursuant to sub-paragraph (ii) above, the Vendor shall
(a) give to the Purchaser all such information and assistance as the Purchaser may reasonably request, for the purpose of monitoring the progress of such action provided that nothing in this paragraph 3 shall require disclosure to the Purchaser of any information protected by legal privilege or which is advice relating to the validity of a claim by the Vendor under this Agreement or the Tax Deed and provided further that any information disclosed to the Purchaser pursuant to this paragraph (iv)(a) shall be and shall be kept by the Purchaser, strictly confidential; and
(b) consult with the Purchaser on a regular basis and as and when the Purchaser may reasonably request on the progress of the Buyer proceedings in question and the Company any steps to be taken in recovering that receipt or savingconnection therewith.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Krug International Corp)
Conduct of Claims. 5.1 7.1 If the Buyer or the Company becomes aware of any a matter which it believes constitutes or which would or might give rise to a General Warranty Claim Claim:
(taking no account of paragraph 1.2 for these purposesa) and the Buyer or shall, as soon as reasonably practicable, give notice to the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect Institutional Seller of the matter giving rise to that Warranty Claim, the Buyer and shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers Institutional Seller with respect to the matter;
(b) the Buyer shall, and shall ensure that each member of the Buyer’s Group will, provide to the Institutional Seller and its advisers reasonable access to premises and personnel and to relevant assets, documents and records within the power or control of each member of the Buyer’s Group as the Institutional Seller may reasonably request, subject to the Institutional Seller agreeing in such form as the Buyer may reasonably require to keep all such information confidential for the purposes of investigating the matter and enabling the Institutional Seller to take the action referred to in question.paragraph 7.1(d) of this schedule 3;
5.4 If there is any dispute between (c) the Institutional Seller (at its own cost) may take copies of the documents or records, and photograph the premises or assets, referred to in paragraph 7.1(b) of this schedule 3 as the Institutional Seller may reasonably request, subject to the Sellers and agreeing in such form as the Buyer as may reasonably require to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability keep all such information confidential;
(d) the Buyer shall not be admitted, and that claim shall not be settled or comprised, other than in accordance consult with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer orInstitutional Seller, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, far as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim claim and shall take reasonable account of the views of the Institutional Seller, and subject to the remaining provisions of this paragraph 7.1(d) being complied with, the Buyer shall, and shall ensure that each member of the Buyer’s Group shall, take any action and institute any proceedings, and give any information and assistance, as the Institutional Seller may reasonably request to:
(i) dispute, resist, appeal, compromise, defend, remedy or potential Warranty Claim shall be reduced mitigate the matter; or
(ii) enforce against a person (other than the Institutional Seller) the rights of a member of the Buyer’s Group in relation to the matter; and
(iii) in connection with proceedings related to the matter (other than against the Institutional Seller) use advisers nominated by the Amount RecoveredInstitutional Seller and, or if any sum has already been paid by or on behalf the Institutional Seller requests, allow the Institutional Seller the exclusive conduct of the Sellers proceedings, in satisfaction each case on the basis that the Institutional Seller:
(I) shall indemnify the Buyer on demand against all reasonable costs and expenses incurred (including legal and professional costs and expenses) as a result of a Warranty Claim, then request or nomination by the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect Institutional Seller; and
(II) take reasonable account of the Amount Recovered.
5.6 For the purposes views of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or the claim;
(as the case may bee) the payment by or on behalf Buyer shall not, and shall use all reasonable endeavours to procure that no member of the Sellers Buyer’s Group shall, admit liability in satisfaction respect of, or compromise or settle, the matter without the prior written consent of the relevant Institutional Seller (such consent no to be unreasonably withheld or delayed); and
(f) the Buyer shall take all reasonable action to mitigate any loss suffered by it or any member of the Buyer’s Group in respect of a matter giving rise to a General Warranty Claim, less any Taxation payable by provided that nothing in this paragraph 7.1 shall require the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses any member of the Buyer and Buyer’s Group from taking or refraining from taking any action which would, in the Company in recovering that receipt Buyer’s reasonable opinion, materially adversely affect the business of the Buyer’s Group (taken as whole).
7.2 In assessing any damages or savingother amounts recoverable for a General Warranty Claim, there shall be taken into account any corresponding savings by, or net benefit to, a member of the Buyer’s Group.
Appears in 1 contract
Sources: Share Purchase Agreement
Conduct of Claims. 5.1 If 24.1 Each Party will inform the Buyer or the Company other as soon as reasonably practicable if it becomes aware of any matter claim or potential claim which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) against Indemnified Persons in relation to that matterany obligations under this Agreement. The Authority will not, then without the Buyer shall promptly notify the Sellers prior written consent of the right.
5.2 If Provider, settle any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) litigation in respect of which indemnification may be sought, regardless of whether or not any Indemnified Person is an actual or potential party thereto, unless such settlement includes an express, complete and unconditional release of each Indemnified Person with respect to all claims asserted in such litigation; such release to be set forth in an instrument signed by all parties to such settlement.
24.2 Where an Indemnified Person intends to enter into any settlement, such Indemnifying Person shall notify the matter giving rise Authority in writing and, where practicable, shall not effect any settlement of any pending or threatened action without consulting with the Authority beforehand. The outcome of such consultation shall not affect the right of the relevant Indemnified Person to enter into any settlement in its sole discretion, provided always that Warranty Claimthe terms of such settlement are reasonable for both Parties taking into account the relevant facts and circumstances and that the Indemnified Person acts reasonably and in good faith and takes into consideration the interests of both Parties
24.3 In addition, the Buyer Provider shall, and shall promptly notify procure that each other relevant Indemnified Person shall:
(a) consult fairly with the Sellers Authority regarding its conduct of the right.underlying claim;
5.3 The Buyer shall have conduct of (b) before making any and all litigation or negotiation provided that it shall continue to consult with the Sellers decision with respect to the matter settlement, consider and take into account, where reasonably practicable in question.
5.4 If there is any dispute between the Sellers circumstances and where not adversely prejudicial to the Buyer as to whether liability in respect good standing or reputation of any third party of the Parties, any business and reputational factor which may be pertinent to the conduct of the underlying claim should be admitted or whether its settlement;
(c) subject to not waiving privilege, shall supply the Authority with copies of information and documents relating to the underlying claim that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance it requires; and
(d) deal with the provisions of this paragraph. Any such dispute shall be referred underlying claim having given consideration to leading counsel agreed between the Sellers reasonable representations and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being views of the Law Society of England Authority and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicableits insurers.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Sources: Framework Agreement
Conduct of Claims. 5.1 8.4.1 If any party to this Agreement or any Subsidiary Agreement (the Buyer or the Company CLAIMANT) becomes aware of any matter which it believes would or might that may give rise to a claim against another party to this Agreement or any Subsidiary Agreement (the RECIPIENT) under this Agreement or the Subsidiary Agreements (other than in respect of a breach of the Warranty Claim (taking no account contained in paragraph 7 of paragraph 1.2 Schedule 8 or under the Tax Deed of Covenant where the claim shall be dealt with in the manner set out in the Tax Deed of Covenant), notice of that fact shall be given to the Recipient as soon as practicable but any failure to give such notice shall not affect the rights of the Claimant except to the extent that the Recipient is prejudiced by such failure.
8.4.2 Without prejudice to the validity of the claim or alleged claim in question, the Claimant shall allow, and shall procure that the relevant Associated Companies of the Claimant allow, the Recipient and its accountants and professional advisers fully 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 these purposes) such purpose the Claimant shall give, and shall procure that the relevant Associated Companies of the Claimant give, subject to the Recipient providing an indemnity in terms reasonably satisfactory to the Claimant in respect of all reasonable costs and expenses, all such information and assistance, including access to premises and personnel, and the Buyer or the Company has a right to make recovery examine and copy or photograph any assets, accounts, documents and records, as the Recipient or its accountants or professional advisers may reasonably request.
8.4.3 If the claim indemnity from any in question is a result of or in connection with a claim by or liability to a third party then:
(including under any policy i) no admission of insurance) in relation to that matter, then the Buyer liability shall promptly notify the Sellers of the right.
5.2 If any sum is paid be made by or on behalf of the Sellers in satisfaction Claimant or an Associated Company of a Warranty Claim, the Claimant and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be compromised, disposed of or settled without the consent of the Recipient (such consent not to be unreasonably withheld or compriseddelayed);
(ii) the Recipient shall, other than subject to providing an indemnity in accordance with terms reasonably satisfactory to the provisions Claimant in respect of this paragraph. Any such dispute shall all costs, liabilities, claims and expenses which may be referred to leading counsel agreed between incurred by the Sellers Claimant as a result of and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed would not have been incurred but for the purpose by either the Sellers same, be 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, compromise or the Buyercontest such claim or liability (including, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers without limitation, making counterclaims or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result other claims against third parties) in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision name of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers Claimant or any Associated Company of the Claimant concerned and to have the conduct of any related proceedings, negotiations or appeals;
(iii) the Claimant will give and procure that the relevant Associated Companies of the Claimant give, subject to their being paid all reasonable out of pocket 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 or liability as the Recipient or its professional advisers reasonably request. The Recipient agrees to keep (and to procure that any Associated Company to which such information is provided keep) all such information confidential and only to use it for such purposes.
8.4.4 To the extent any claim is covered by the provisions of Clause 12, the conduct of claims set out in satisfaction of a Warranty Claim, then the Buyer that Clause shall pay the Amount Recovered prevail to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of extent it conflicts with this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount RecoveredClause 8.4.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Sources: Sale and Purchase Agreement (General Cable Corp /De/)
Conduct of Claims. 5.1 If the Buyer or the Company becomes aware of any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the 2.1. The Buyer shall promptly as soon as reasonably practicable notify the Sellers in writing of the right.
5.2 If any sum is paid by or on behalf of Claim for Taxation which comes to its notice whereby it appears that the Sellers in satisfaction of a Warranty Claim, and the Buyer are or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been become liable to pay the Buyer in respect of which a claim under the Amount RecoveredTax Warranties may be made provided that the giving of such notice is not a condition precedent to the liability of the Sellers under the Tax Warranties.
5.6 For 2.2. The Buyer shall ensure that a Claim for Taxation to which paragraph 2.1 applies, is, so far as reasonably practicable, dealt with separately from claims to which it does not apply.
2.3. Provided that the purposes of paragraph 5.5 of this schedule, Sellers indemnify the "Amount Recovered" shall be equal Group Company and the Buyer to so much the reasonable satisfaction of the sum Buyer against all losses, costs, damages and expenses (including interest on overdue Taxation) which may be incurred thereby the Buyer will procure that the Group Company, at the Sellers’ cost and expense, take such action and gives such information and assistance in connection with its Taxation affairs as the Sellers may reasonably and promptly request to dispute, appeal against, settle or benefit received by reason compromise any Claim for Taxation in respect of which a claim may be made for breach of any Tax Warranties but excluding allowing the Sellers to undertake the conduct of the enforcement dispute with the relevant Taxation Authority.
2.4. The Buyer, on receipt of notice in writing, shall procure (without prejudice to the generality of the foregoing) that the Sellers (and their advisers) are, within a reasonable time, given reasonable access to all relevant documents, records and personnel of a Group Company and the Buyer and their advisers to enable the Sellers promptly and effectively to evaluate the dispute and enforce any of their rights under this paragraph 2.
2.5. In connection with the conduct of any rights such as are referred dispute relating to in paragraphs 5.1 or 5.2 as does not exceed a Claim for Taxation to which the amount claimed by Tax Warranties applies the Buyer in relation to such Warranty Claim or a Group Company (as the case may be) the payment by or on behalf of shall keep the Sellers informed of all material relevant matters and shall promptly forward or procure to be forwarded copies of all material correspondence and other written communications pertaining thereto.
2.6. The Buyer will not be required to take or procure that each Group Company will take any action mentioned in satisfaction paragraph 2.3;
2.6.1. which it reasonably considers to be materially prejudicial to the business or Taxation affairs of the relevant Warranty Claim, less any Taxation payable by a Group Company or the Buyer or any company in the Company same group as the Buyer; or
2.6.2. which involves contesting a Claim for Taxation beyond the first appellate body (excluding the Taxation Authority which has made the Claim) in respect the jurisdiction concerned unless the Sellers obtains (at the Sellers’ cost and expense) the opinion of tax counsel of at least 10 years’ call that receipt and less all it is reasonable costs and expenses to make such an appeal.
2.7. If the Sellers fail within 15 Business Days of the Buyer and giving notice requiring the Sellers to do so to inform the Buyer of any action which the Sellers wish the Buyer to procure a Group Company to take under paragraph 2.5 the Buyer will be entitled to procure that the Group Company settles or compromises any Claim for Taxation on such terms as it determines in recovering that receipt or savingits absolute discretion.
Appears in 1 contract
Conduct of Claims. 5.1 9.1 If the Buyer becomes aware of any fact, matter or circumstance which would reasonably be expected to give rise to a claim under the Title and Capacity Warranties, the Warranties or the Indemnities, the Buyer shall give notice of such fact, matter or circumstance to the Sellers as soon as reasonably practicable and in any event within thirty (30) Business Days of becoming aware of any such fact, matter or circumstance, and the Sellers shall not be liable for any Loses in respect of any such claim to the extent that they are not so notified.
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 Sellers under the Title and Capacity Warranties, the Warranties or the Indemnities then the Buyer shall:
(a) give notice of such claim to the Sellers as soon as reasonably practicable after the Buyer becomes aware of it;
(b) keep the Sellers promptly informed as to the progress of any such claim and shall give the Sellers copies of such communications and other documents (written or otherwise) transmitted to any other party to any proceedings or their agents or professional advisers (including, without limitation, pleadings and any opinion of Counsel relating to any proceedings against any third parties) as the Sellers may reasonably request;
(c) take, and shall 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 as may be reasonably requested by the Sellers and, upon request in writing by the Sellers permit the Sellers to take sole conduct of such actions as the Sellers deem appropriate in connection with such claim, in the name of the Buyer or the Company becomes aware of any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers relevant member of the right.Buyer’s Group;
5.2 If any sum is paid by or on behalf (d) comply with all reasonable requests of the Sellers in satisfaction relation to such claim including giving the Sellers reasonable access to premises and personnel, documents and records which are within the Buyer’s power, possession and control for the purpose of a Warranty Claim, and investigating the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter matters giving rise to such claim; and
(e) not (and shall procure that Warranty Claim, the Buyer shall promptly notify the Sellers no member of the right.
5.3 The Buyer shall have conduct of Buyer’s Group shall) accept or pay or compromise any and all litigation such liability or negotiation provided that it shall continue to consult with claim without the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a prior written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf consent of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered (such consent not to the Sellers on be unreasonably withheld or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovereddelayed).
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Conduct of Claims. 5.1 4.1 If the Buyer or the any Buyer's Group Company becomes aware of any matter which it believes would or might is reasonably likely to give rise to a Warranty Claim or upon any Claim being made other than a Claim under the Tax Deed (taking no account to which Clause 6 of paragraph 1.2 for these purposesthe Tax Deed shall apply) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then following provisions shall apply:
4.1.1 the Buyer shall promptly notify as soon as reasonably practicable give detailed written notice to the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect Seller of the matter giving rise to that Warranty Claim, the Buyer and shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers Seller with respect to the matter in question.matter;
5.4 If there is any dispute between the Sellers and 4.1.2 the Buyer as to whether shall not make, and shall procure that no other Buyer's Group Company shall make, any admission of liability in respect of any third party claim should or compromise or settle the matter without the prior written consent of the Seller (such consent not to be admitted unreasonably withheld or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with delayed);
4.1.3 (subject to the provisions Seller undertaking to maintain the confidentiality of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and same) the Buyer or, in default of agreement on or before shall make available to the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised Seller at the least cost to Seller's expense and upon reasonable notice and in such manner as does not materially disrupt the Sellers. The decision business of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2Buyer's Group Companies, then either the Sellers' liability all relevant details documentation and correspondence in relation to such Warranty Claim or potential Warranty Claim shall be reduced and by prior arrangement and during normal business hours permit the Amount RecoveredSeller to inspect the relevant accounts, or if any sum has already been paid by or on behalf books and records of the Sellers Company or the Subsidiary and to have access to such information as the Seller may reasonably require in satisfaction order to investigate fully the merits of a Warranty Claim, then such claim.
4.1.4 the Buyer shall, and shall pay procure that each Buyer's Group Company, retains and preserves all relevant assets, documents, records and information within the Amount Recovered power, possession or control of the Buyer's Group Company relating to the Sellers on Company and the Subsidiary which are or before are reasonably likely to be relevant in connection with any Claim for so long as any actual or prospective Claim remains outstanding;
4.1.5 the date falling five Business Days after the date on which that receipt or saving is made. For the purposes Seller shall at its own cost be entitled to copies of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect any of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this scheduledetails documentation, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are correspondence, accounts, books, records and information referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.paragraph 4.1.3
Appears in 1 contract
Sources: Agreement to Buy and Sell (Take Two Interactive Software Inc)
Conduct of Claims. 5.1 If 40.1 The Supplier agrees (and shall procure that its Sub-contractors agree) that the Buyer or Authority has the Company becomes aware sole right, on giving written notice to such effect to the Supplier at any time, to control of any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) proceedings in relation to that matter, then the Buyer shall promptly notify the Sellers any Third Party Claim (including any claim by employees of the righteither the Authority or the Supplier), regardless of whether the Supplier (or any Sub-contractor) is also a party to such proceedings.
5.2 If 40.2 The Authority agrees that it shall not settle or compromise any sum Third Party Claim giving rise to losses exceeding £10,000 (ten thousand pounds) for which the Supplier is paid by liable to indemnify or on behalf 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, in contesting, settling or compromising any Third Party Claim, the Authority takes or fails to take any action which prejudices any entitlement of the Sellers in satisfaction Supplier to recover any portion of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including insurer under any insurance policy maintained by the Supplier in accordance with this Contract, the liability of insurance) the Supplier to indemnify or 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 matter giving rise Approval of the Authority, settle or compromise any claim (whether insured or uninsured) to that Warranty Claimwhich the Authority is, or is 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 Buyer Supplier shall promptly notify not settle or compromise any such claim exceeding £10,000 (ten thousand pounds) without prior consultation with the Sellers of Authority; and
40.4.3 it shall ensure that its Sub-contractors give undertakings identical to those given by the rightSupplier to the Authority under this Clause 40.
5.3 The Buyer shall have 40.5 If conduct of a claim is assumed by the Authority pursuant to this Clause 40, the Supplier may recover from the Authority any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on reasonably incurred Losses which an individual is first proposed for the purpose by either the Sellers Supplier or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit its insurers incur by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf Authority's conduct of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of claim and any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction settlement of the relevant Warranty Claim, less any Taxation payable by claim or judgment being given if the Buyer settlement is made without the Supplier's consent (such consent not to be unreasonably withheld or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingdelayed).
Appears in 1 contract
Conduct of Claims. 5.1 If the any Buyer or the Group Company becomes aware of any matter which may result in a claim being brought against it believes would or might give rise by another person (a “Third Party Claim”), including a Taxation Authority Claim, which may lead to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall, and shall promptly notify procure that each other Buyer Group Company shall:
(a) make no admission of liability or settle or compromise the Sellers Third Party Claim without the prior consent in writing of the right.
5.3 The Buyer shall have conduct of any and all litigation Seller such consent not to be unreasonably withheld or negotiation delayed provided that it shall continue will take all reasonable action to consult with the Sellers with respect to the matter in question.
5.4 If there is mitigate any dispute between the Sellers and the Buyer as to whether liability loss that may arise in respect of any third party claim should be admitted resulting Claim;
(b) for the duration of the Third Party Claim provide the Seller and its Agents with all reasonably material information relevant to the Third Party Claim (including reasonable access to premises and personnel at reasonable times with an advanced written notice and the right to examine and copy all relevant documents and records, at the Seller’s own cost and expense) and shall preserve all such information; and
(c) consult with, give such information and assistance to and take such action as the Seller may reasonably request in order to avoid, defend, dispute, mitigate, appeal, settle or whether that claim should be settled compromise the Third Party Claim, in each case at the Seller’s own cost and expense (even if any such cost or compromisedexpense is due on a provisional basis under statutory rules), liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions exception of this paragraph. Any such dispute shall any admission of liability or settlement or any other action which may result in an admission of liability of any Buyer Group Company or its Agents, which may only be referred to leading counsel agreed between taken with the Sellers and the Buyer or, prior written consent in default writing of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers such consent not to be unreasonably withheld or the Buyerdelayed. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinionIn addition, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to Taxation Authority Claims, the Buyer shall, and shall procure that each other Buyer Group Company shall:
(a) promptly keep the Seller fully informed as to all material developments and provide to the Seller copies of all material correspondence and full and accurate notes of any non-written communications with a Taxation Authority;
(b) promptly notify the Seller of any intended material oral communication or any meeting with any Taxation Authority and allow the Seller or their representatives to participate in any such Warranty Claim communication or potential Warranty Claim shall be reduced by meeting;
(c) not make any material communication with a Taxation Authority without the Amount Recovered, or if any sum has already been paid by or on behalf prior written approval of the Sellers Seller (such approval not to be unreasonably withheld, conditioned or delayed); and
(d) promptly provide for the Seller’s review any: (i) draft correspondence or other document to be sent to any Taxation Authority (in satisfaction of a Warranty Claimany event, then the Buyer shall pay the Amount Recovered to the Sellers on or at least ten (10) Business Days before the relevant proposed date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation submission to such Warranty Claim Taxation Authority); and (ii) any submissions or (other documents to be filed with any court or other appellate body, and shall make any amendments to such correspondence, instructions, submissions or other documents as the case Seller may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingrequest.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (International Game Technology PLC)
Conduct of Claims. 5.1 6.1 If the Buyer becomes aware of any Claim for Taxation which could give rise to a claim being made by the Buyer under this Schedule or the warranties contained in Clause 9 of Schedule 8 of the Agreement it shall notify the Seller as soon as reasonably practicable.
6.2 The Buyer agrees (if the Seller indemnifies and secures the Buyer and the Company or any of its Subsidiaries to the reasonable satisfaction of the Buyer against any loss, liability, costs or damages which may thereby be incurred including the Taxation the subject matter of the Claim) to take and procure that the Company or any of its Subsidiaries shall take such action and give such information and assistance as the Seller may reasonably request to resist, appeal or compromise any Claim for Taxation notified to the Seller in accordance with paragraph 6.1.
6.3 The action which the Seller may request under paragraph 6.2 shall include the Buyer or the Company becomes aware or any of its Subsidiaries applying to postpone (so far as legally possible) the payment of any matter which it believes would or might give rise Taxation and allowing professional advisers nominated by the Seller (subject to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid approval by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by such approval not to be unreasonably withheld or delayed) to take over at the President Seller's own expense the conduct of all negotiations and proceedings in connection with the Claim for Taxation.
6.4 The Seller shall keep the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, Buyer fully informed as to which any action taken or postponed to be taken in conjunction with the conduct of all negotiations and proceedings of whatever nature arising in connection with the courses of conduct proposed by the Buyer such dispute and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who all other relevant matters and shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.supply to
Appears in 1 contract
Conduct of Claims. 5.1 If the Buyer or the Company becomes aware The provisions of this paragraph 7 shall apply to any matter which it believes would may give rise to or might arises by virtue of a claim under paragraph 3 or any claim for breach of the Environmental Warranties.
7.1 Where the Vendor or any member of the Vendor's Group has or may have a claim against a third party in relation to a matter which has given or may give rise to a Warranty Claim (taking no account claim under paragraph 3 or any claim for breach of paragraph 1.2 for these purposes) the Environmental Warranties, the Purchaser and any relevant member of the Buyer or Purchaser's Group shall afford the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) Vendor all such assistance as may be reasonable in relation to its conduct of such claim (subject to any duties of confidentiality owed to third parties and to any right to maintain legal privilege and without prejudice to any claim asserted by the Purchaser under paragraph 3), including access to and copies of any reports, correspondence, documents or other information in the possession of the Purchaser or any 254 member of the Purchaser's group of companies provided that matterthe Purchaser and any relevant member of the Purchaser's Group is indemnified to its reasonable satisfaction against all reasonable costs, then expenses and liabilities incurred as a result of so doing.
7.2 Without prejudice to the Buyer validity of any claim or alleged claim made by the Purchaser under paragraph 3 or any claim for breach of the Environmental Warranties, the Purchaser shall promptly provide such reports, documents, correspondence, information, assistance (including access to employees, agents or contractors of the Purchaser's Group) and facilities as are potentially relevant to any such claim and are in its possession (or in the possession of the Purchaser's Group) as the Vendor may reasonably request (subject to compliance with any duties of confidentiality owed to third parties and to the right to maintain legal privilege) including reasonable access to any relevant part of any Property or so far as reasonably practicable to any adjacent or affected property. The Vendor receiving such information etc. shall without limitation as to time keep all such information confidential except for disclosure in defending or prosecuting any Environmental Proceedings or any claim or alleged claim or argument under paragraph 3 or any claim for breach of the Environmental Warranties or as otherwise required by law.
7.3 If a claim under paragraph 3 or any claim for breach of the Environmental Warranties arises or may arise as a result of or in connection with any Environmental Proceedings to which the Purchaser or any member of the Purchaser's Group is or is likely to become a party or where the Purchaser or a member of the Purchaser's Group is the subject of such Environmental Proceedings the Purchaser shall promptly notify the Sellers Vendor in writing of such claim or potential claim and the actual or anticipated Environmental Proceedings as soon as it becomes aware of such claim or Proceedings and the following provisions shall apply:
(i) the Vendor shall have the right at any time to assume primary responsibility for and control over the conduct of all or any part of such Environmental Proceedings. Unless and until the Vendor assumes conduct by notice in writing to the Purchaser the Purchaser or any member of the right.Purchaser's Group shall have conduct of any such Environmental Proceedings; 255
5.2 If (ii) while the Purchaser or any sum is paid member of the Purchaser's Group has conduct of any such Environmental Proceedings, it shall be entitled to avoid, dispute, deny, defend, resist, appeal, compromise or contest such Environmental Proceedings (including, without limitation, making counterclaims or other claims against third parties in its own name) and to have the conduct of such Environmental Proceedings, and any related Remedial Action, negotiations or appeals but no admission of liability shall be made by or on behalf of the Sellers in satisfaction Purchaser (or any member of a Warranty Claimthe Purchaser's Group), and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be compromised, disposed of or settled without the consent of the Vendor (such consent not to be unreasonably withheld or compriseddelayed);
(iii) if the Vendor assumes conduct of the Environmental Proceedings, it shall be entitled to take any action to avoid, dispute, deny, defend, resist, appeal compromise or contest such Environmental Proceedings in the name of the Purchaser or any member of the Purchaser's Group provided that the Vendor shall consult as fully as is reasonably practicable with the Purchaser (or the relevant member of the Purchaser's Group) in respect thereof and shall not take such action in its name as may materially adversely affect the value of any Property or the goodwill or good name of the Purchaser (or the relevant member of the Purchaser's Group) unless the Purchaser (or the relevant member of the Purchasers' Group) consents thereto (such consent not to be unreasonably withheld or delayed) and the Vendor shall consult as fully as is reasonably practicable with the Purchaser (or the relevant member of the Purchaser's Group) as regards any negotiations and/or appeals arising out of such Environmental Proceedings.
7.4 The party having conduct of any Environmental Proceedings (the "Conduct Party") shall ensure that:
(i) the other than party shall be informed promptly of any information, and shall be provided with copies of any correspondence or documents held by the Conduct Party which is material to the Environmental Proceedings (except to the extent this is impossible without waiving privilege in respect thereof);
(ii) the other party shall be provided with advance notice of any proposal by the Conduct Party (or any member of its group of companies) or any third party to undertake Remedial Action provided that this obligation shall not apply in case of emergency, that is where there is an imminent and substantial risk of serious harm to human health or to the Environment; and
(iii) Each party shall comply with the reasonable requests of the other for arrangements or procedures to maintain confidentiality or legal privilege in relation to any matters arising out of or relating to any Environmental Proceedings.
7.5 If any amount is recovered in relation to any Environmental Loss or claim under the Environmental Warranties pursuant to paragraphs 7.1 and/or 7.3 above, after first deducting any costs and expenses incurred in relation to such recovery, the balance shall be divided between the Vendor and the Purchaser in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between Agreed Proportion in which the Sellers and the Buyer or, in default of agreement on Environmental Loss or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability loss arising in relation to such Warranty Claim or potential Warranty Claim shall be reduced the breach of Environmental Warranties was borne by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recoveredthem.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Sources: Sale and Purchase Agreement (General Cable Corp /De/)
Conduct of Claims. 5.1 8.1 If either the Buyer or the Company becomes become aware of any a matter which it believes would or they reasonably consider might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has other than a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) Claim in respect of Tax to which the provisions of paragraph 9 of the Tax Covenant shall apply) or the Seller becomes aware of a matter which it reasonably considers might give rise to a claim pursuant to the Buyer’s Warranties then such party:
(a) shall (or, in the case of the Buyer, shall procure that the Company shall) as soon as reasonably practicable give notice to the Seller or the Buyer as the case may be of the matter giving rise to that Warranty Claim, the Buyer and shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers Seller or the Buyer as the case may be with respect to such matter but such notice shall not be a condition precedent to the matter in question.
5.4 If there is any dispute between liability of the Sellers and Seller or the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability the case may be;
(b) shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost provide to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and Seller or the Buyer as counsel the case may determine in his sole discretion orbe and its advisers reasonable access (at reasonable hours and with reasonable prior notice having been given) to premises and personnel and to relevant assets, if no such determination is made, by documents and records within the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer Buyer´s or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or Seller’s Group (as the case may be) for the payment by or on behalf purposes of investigating the matter;
(c) (at the requesting party’s cost) may take copies of the Sellers documents or records, and photograph the premises or assets, referred to in satisfaction clause 8.1(b);
(d) subject to the following provisions of this clause 8 and clause 7.12, shall (and in the case of the Buyer shall procure that the Company shall) take such action and give such information and assistance in connection with the affairs of the Buyer or the Company or the Seller as the requesting party may reasonably request in writing to negotiate, avoid, dispute, resist or defend against the matter;
(e) shall indemnify the other party against all costs and expenses reasonably incurred by that other party or any member of such party’s Group in complying with their obligations under this clause 8.
8.2 The Buyer and, as the case may be, the Seller shall not be obliged to take or procure the taking of any of the following actions pursuant to its obligations contained in clause 8.1(d):
(a) the submission of any proposal to settle or compromise the relevant matter made by the Seller or the Buyer (as the case may be) of which the Buyer (or the Seller as the case may be) (acting reasonably) does not approve;
(b) agreeing to the settlement or compromise of any claim or any proposal for the same which is likely to affect the future liability of the Company, the Buyer or any member of the Buyer´s Group or the Seller or any member of the Seller’s Group unless the Seller (or the Buyer as the case may be) indemnifies the Buyer (or the Seller as the case may be), or the Company or the relevant member of the Buyer´s Group or the Seller’s Group (as the case may be) against any such future liability;
(c) complying with any unreasonable instruction of the Seller or the Buyer as the case may be or taking any action or procuring the taking of any action which the Buyer or the Seller (as the case may be) considers (acting reasonably) to be onerous or prejudicial to the Buyer or any member of the Buyer´s Group or the Seller or any member of the Seller’s Group (as the case may be).
8.3 If a Party does not request the other to take action pursuant to clause 8.1(d) or shall fail to indemnify the other Party or the Company concerned in accordance with clause 8.1(e) within 14 days of the written notice to the Seller (or the Buyer as the case may be) served in accordance with clause 8.1
(a) the Buyer (or the Seller as the case may be) or the Company shall be free to pay or settle the relevant matter on such terms as it may in its absolute discretion think fit.
8.4 Any Claim or claim under the warranties given by the Buyer shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be irrevocably withdrawn and waived at the expiration of twelve months from the date of giving notice of such Claim (or claim under the Buyer’s Warranties) unless legal proceedings in respect thereof have been commenced by the other party by issuing and serving such proceedings on the Seller (or the Buyer as the case may be) and the loss giving rise to any such Claim (or claim under the warranties given by the Buyer) which shall be so deemed withdrawn and waived shall not be capable of being the subject of a further Claim (or claim under the Buyer’s Warranties).
8.5 The Seller acknowledges that if any Warranty Claim, less any Taxation payable is breached or proves to be untrue or misleading or if a Claim is made and in assessing the loss to the Company or the Buyer all costs and expenses reasonably and properly incurred by the Buyer or the Company as a result of such breach or of the Warranty being untrue or misleading shall be taken into account and form part of any Claim.
8.6 Notwithstanding any failure by the Buyer to notify the Seller or of the Seller to notify the Buyer (as the case may be) pursuant to clause 8.1
(a) the Buyer (or the Seller as the case may be) shall not (and shall procure, only in the case of the Buyer, that the Company shall not) settle or compromise any such claim or make any admission of liability without the prior written consent of the Seller or the Buyer (as the case may be) (which shall not be unreasonably withheld or delayed).
8.7 If any Claim (or claim under the warranties given by the Buyer) shall arise by reason of some liability which, at the time the Claim (or claim under the Buyer’s Warranties) is notified to the Seller (or the Buyer as the case may be), is contingent only, the Seller (or the Buyer as the case may be) shall not be under any obligation to make any payment in respect of such Claim (or claim under the Buyer’s Warranties) unless and until the contingent liability crystallises as an actual liability. Provided that receipt and less all reasonable costs and expenses such Claim shall have been notified to the Seller or the Buyer (as the case may be) in accordance with clause 7.3 then clause 8.4 shall be amended in relation to such Claim (or claim under the Buyer’s Warranties) so as to require that legal proceedings be commenced within twelve months from the date on which the said liability ceases to be contingent or becomes capable of being quantified, as the case may be.
8.8 Nothing in this agreement shall be deemed to relieve the Buyer or of the Buyer and Seller (as the Company in recovering that receipt case may be) from any duty to mitigate any loss or savingdamage incurred by it.
Appears in 1 contract
Conduct of Claims. 5.1 If The Contractor shall give notice to the Buyer or the Company becomes aware Authority as soon as reasonably practicable of any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) proceedings in relation to that matter, then the Buyer shall promptly notify the Sellers any Third Party Claim (including any claim by employees of the right.
5.2 If Parties) to which the Authority is or is likely to be a party, regardless of whether the Contractor (or any sum sub-contractor) is paid by or on behalf also a party to such proceedings, and such notice shall set out full particulars of the Sellers in satisfaction claim. The Contractor shall provide the Authority with copies of a Warranty Claim, any such claim form and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy statement of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 claim. The Buyer Contractor shall have conduct of proceedings in relation to any and all litigation or negotiation Third Party Claim, provided that it shall continue the Authority may, on giving written notice to consult with the Sellers with respect such effect to the matter Contractor, at any time take control of and where appropriate conduct any proceedings in question.
5.4 If there relation to any Third Party Claim (including any claim by employees of the Parties), to which the Authority is a party, regardless of whether the Contractor (or any dispute between the Sellers and the Buyer as Sub-Contractor) is also a party to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability such proceedings. The Contractor shall not be admitted, and that claim shall not be settled or comprised, other than in accordance procure compliance by its Sub-Contractors with the provisions of this paragraphclause 70.5.2. Any such dispute Where the Authority does not exercise its right pursuant to clause 70.5.2, the Contractor shall be referred to leading counsel agreed between at all times keep the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, Authority informed as to which the progress of the courses of conduct proposed by the Buyer and by the Sellers any such Third Party Claim until such Third Party Claim is most likely to result in the third party claim being agreedfinally determined, settled or compromised withdrawn, and shall at the least cost Authority’s request provide the Authority with copies of all documentation relating to such claim and shall where so required by the Authority liaise and work with the Authority in the conduct of the claim. The Authority agrees that it shall not settle or compromise any Third Party Claim giving rise to losses exceeding ten thousand pounds (£10,000) (Indexed) for which the Contractor is liable to indemnify the Authority under clause 70.1 (Contractor’s Indemnity) without prior consultation with the Contractor. The Authority shall keep the Contractor reasonably informed as to the Sellersprogress and status of any such Third Party Claim until such Third Party Claim is settled or withdrawn. The decision If, in contesting, settling or compromising any Third Party Claim, the Authority takes or fails to take any action which prejudices any entitlement of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and Contractor to recover any portion of the Sellers for all purposes. Counsel's fees and expenses shall be borne claim from any insurer under any insurance policy maintained by the Sellers and Contractor in accordance with this Contract, the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason liability of the enforcement Contractor to indemnify the Authority in respect of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim claim shall be reduced by such portion. The Contractor undertakes that: it shall not, without the Amount Recoveredprior written consent of the Authority, settle or compromise any claim (whether insured or uninsured) to which the Authority is, or if any sum has already been paid by or on behalf of is likely to become, a party; where a claim is made against the Sellers in satisfaction of Contractor and the Authority is not, and is not likely to become, a Warranty Claim, then the Buyer shall pay the Amount Recovered party to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedulesuch claim as a defendant, the Sellers Contractor shall be deemed never to have been liable to not settle or compromise any claim exceeding ten thousand pounds (£10,000) (Indexed) without prior consultation with the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.Authority; and
Appears in 1 contract
Sources: Contract for the Provision of Secure Escort Services for Children and Young People