Common use of Decline to Assume the Defense Clause in Contracts

Decline to Assume the Defense. If (a) the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within thirty (30) days after the date the Indemnifying Party is notified of such claim by the Indemnified Party, (b) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (c) the claim seeks an injunction or equitable relief against the Indemnified Party, or (d) the Indemnifying Party is failing to prosecute or defend such claim in good faith, then: (i) the Indemnified Party may defend against such claim or litigation, at the sole cost and expense (which cost and expense shall be reasonable) of the Indemnifying Party, in such manner as it may deem reasonably appropriate, including settling such claim or litigation, subject to the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed), and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its sole cost and expense.

Decline to Assume the Defense. If The Indemnified Party may defend against any such claim, at the sole cost and expense of the Indemnifying Party, in such manner as it may deem reasonably appropriate, including settling such claim in accordance with the terms hereof if (ai) the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within thirty (30) days after the date the Indemnifying Party is notified of such claim by the Indemnified Party, Party or (bii) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, Indemnified Party reasonably concludes that the Indemnifying Party is (cA) the claim seeks an injunction or equitable relief against not diligently defending the Indemnified Party, or (dB) the Indemnifying Party is failing to prosecute or defend not contesting such claim in good faithfaith through appropriate proceedings or (C) has not taken such action (including the posting of a bond, then: (ideposit or other security) as may be necessary to prevent any action to foreclose a Lien against or attachment of any asset or property of the Indemnified Party may defend against for payment of such claim or litigationclaim; provided that in the case of this clause (ii), at the sole cost and expense (which cost and expense shall be reasonable) of the Indemnifying Party, in such manner as it may deem reasonably appropriate, including settling such claim or litigation, subject Indemnified Party will provide written notice to the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed)of Indemnified Party’s conclusion, and (ii) the Indemnifying Party shall be entitled have failed to participate in take the applicable actions within thirty (but not control30) the defense days of such action, with its counsel and at its sole cost and expensewritten notice.