Common use of Defense by Indemnified Party Clause in Contracts

Defense by Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to assume the defense of the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.2 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to assume the defense of the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s 's defense pursuant to this Section 7.2 or of the Indemnifying Party’s 's participation therein at the Indemnified Party’s 's request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If (a) the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that disputes its Liability under Section 8.3, (b) the Indemnifying Party desires accepts its Liability under Section 8.3 but chooses not to assume the defense of defend the Third-Party Claim, (c) the Indemnifying Party chooses to defend the Third-Party Claim but any time thereafter fails to prosecute or if defend vigorously and diligently or settle the Third-Party Claim or (d) the Indemnifying Party fails to give any notice whatsoever of its acceptance or dispute of its Liability within the Dispute Period, then the Indemnified Party will have the right (but not the obligation) to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party shall make its election whether or not to defend within ten (10) calendar days after the expiration of the Dispute Period (if it fails to give any notice whatsoever during this period, it shall be deemed to have elected not to defend). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDEDprovided, HOWEVERhowever, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which that the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.2 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.28.4, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to assume defend the defense of Third-Party Claim, if the Indemnifying Party gives such notice but any time thereafter fails to prosecute or defend vigorously and diligently or settle the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party (including, with respect to Tax matters, internal costs and expenses of the Purchaser, as the Indemnified Party), the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDEDprovided, HOWEVERhowever, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.29.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) belowSection 9.2(a)(iii), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.2 9.2 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.29.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If the an Indemnifying Party fails to notify the an Indemnified Party within the Dispute Election Period that the Indemnifying Party desires elects to assume defend the defense of Indemnified Party pursuant to Section 10.6.2, or if the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 10.2 but fails diligently and promptly to prosecute or settle the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will shall be diligently prosecuted by the Indemnified Party in good faith to a final conclusion or will be settled at the discretion of the Indemnified Partysettled. The Indemnified Party will shall have full control of such defense and proceedings; and provided, including however, that without the Indemnifying Party's consent, which consent shall not be unreasonably delayed or withheld, the Indemnified Party shall not be authorized by the Indemnifying Party to enter into any compromise or settlement thereofof such Third Party Claim on any non-monetary basis; PROVIDEDand provided further, HOWEVERhowever, that if requested by the Indemnified Party, the Indemnifying Party willshall, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third-Party Claim which that the Indemnified Party is contesting, or, if appropriate and related to the Third-Party Claim in question, in making any counterclaim against the person asserting the Third-Party Claim or any cross-complaint against any person. Notwithstanding the foregoing provisions of this Section 7.2foregoing, if the Indemnifying Party has notified delivered a written notice to the Indemnified Party within to the Dispute Period effect that the Indemnifying Party disputes its potential liability hereunder to the Indemnified Party with respect to such Third-Party Claim under this Article X and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) belowby a final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will shall not be required to bear the costs and expenses of the Indemnified Party’s 's defense pursuant to this Section 7.2 10.6 or of the Indemnifying Party’s 's participation therein at the Indemnified Party’s 's request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.210.6, and the Indemnifying Party will shall bear its own costs and expenses with respect to any such participation.

Defense by Indemnified Party. If the an Indemnifying Party fails to notify the an Indemnified Party within the Dispute Election Period that the Indemnifying Party desires elects to assume defend the defense of Indemnified Party pursuant to Section 10.6.2, or if the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 10..2 but fails diligently and promptly to prosecute or settle the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will shall be diligently prosecuted by the Indemnified Party in good faith to a final conclusion or will be settled at the discretion of the Indemnified Partysettled. The Indemnified Party will shall have full control of such defense and proceedings; and provided, including however, that without the Indemnifying Party's consent, which consent shall not be unreasonably delayed or withheld, the Indemnified Party shall not be authorized by the Indemnifying Party to enter into any compromise or settlement thereofof such Third Party Claim on any non-monetary basis; PROVIDEDand provided further, HOWEVERhowever, that if requested by the Indemnified Party, the Indemnifying Party willshall, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third-Party Claim which that the Indemnified Party is contesting, or, if appropriate and related to the Third-Party Claim in question, in making any counterclaim against the person asserting the Third-Party Claim or any cross-complaint against any person. Notwithstanding the foregoing provisions of this Section 7.2foregoing, if the Indemnifying Party has notified delivered a written notice to the Indemnified Party within to the Dispute Period effect that the Indemnifying Party disputes its potential liability hereunder to the Indemnified Party with respect to such Third-Party Claim under this Article X and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) belowby a final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will shall not be required to bear the costs and expenses of the Indemnified Party’s 's defense pursuant to this Section 7.2 10.6 or of the Indemnifying Party’s 's participation therein at the Indemnified Party’s 's request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.210.6, and the Indemnifying Party will shall bear its own costs and expenses with respect to any such participation.

Defense by Indemnified Party. If (x) the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to assume defend the defense of the Third-Third Party Claim, or if the Indemnifying Party gives such notice but any time thereafter fails to prosecute or defend vigorously and diligently or settle the Third Party Claim or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then or (y) such Third Party Claim relates to Taxes and the Surviving Corporation may be the Indemnified Party, then, in any such case, the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party (including internal costs and expenses of the Surviving Corporation, as Indemnified Party), the Third-Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVERprovided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.29.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Third Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s 's defense pursuant to this Section 7.2 9.2 or of the Indemnifying Party’s 's participation therein at the Indemnified Party’s 's request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.29.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party accepts its liability to the Indemnified Party and desires to assume defend the defense of Third-Party Claim, if the Indemnifying Party gives such notice but any time thereafter fails to prosecute or defend vigorously and diligently or settle the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if . If requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) belowSection 7.2(a)(iii), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.2 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to assume the defense of the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.27.02, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.2 7.02 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.27.02, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If (a) the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that disputes its Liability under Section 8.3, (b) the Indemnifying Party desires accepts its Liability under Section 8.3 but chooses not to assume the defense of defend the Third-Party Claim, (c) the Indemnifying Party chooses to defend the Third-Party Claim but any time thereafter fails to prosecute or if defend vigorously and diligently or settle the Third-Party Claim or (d) the Indemnifying Party fails to give any notice whatsoever of its acceptance or dispute of its Liability within the Dispute Period, then the Indemnified Party will have the right (but not the obligation) to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party shall make its election whether or not to defend within ten (10) calendar days after the expiration of the Dispute Period (if it fails to give any notice whatsoever during this period, it shall be deemed to have elected not to defend). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDEDprovided, HOWEVERhowever, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which that the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.2 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.28.4, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.. 8.5

Defense by Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to assume the defense of the Third-Party Claim, or if the Indemnifying Party gives such notice but any time thereafter fails to prosecute or defend vigorously and diligently or settle the Third-Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.2, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s 's defense pursuant to this Section 7.2 or of the Indemnifying Party’s 's participation therein at the Indemnified Party’s 's request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

Defense by Indemnified Party. If Except with respect to Tax Audits described in Section 6.7(d), if (i) the Indemnifying Party fails elects (or is deemed to notify have elected) not to defend the Indemnified Party within the Dispute Period that the Indemnifying against a Third Party desires Claim pursuant to assume the defense of the Third-Section 11.7(b) or so elects to defend against such Third Party Claim but fails to diligently prosecute, indemnify against or settle such Third Party Claim, (ii) any Third Party Claim relates to or if arises in connection with any Legal Proceeding by a Governmental Authority or any criminal proceeding, action, indictment, allegation or investigation, (iii) under applicable standards of professional conduct, a conflict of interest on any significant issue related to any Third Party Claim exists between the Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand, or (iv) any portion of any Third Party fails to give Claim is seeking relief that exceeds any notice whatsoever within the Dispute Periodlimitation on liability in this Agreement, then the Indemnified Party will shall have the right to defend, at the sole and be reimbursed for its cost and expense of (but only if the Indemnifying Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, the Third-Party Claim by all appropriate proceedings. In such circumstances, which proceedings will be prosecuted by the Indemnified Party shall defend any such Third Party Claim in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will and have full control of such defense and proceedings; provided, including however, that the Indemnified Party may not enter into any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-such Third Party Claim which the Indemnified Party if indemnification is contesting. Notwithstanding the foregoing provisions of this Section 7.2to be sought hereunder, if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in all respects in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.2 or of without the Indemnifying Party’s participation therein at the Indemnified Party’s requestconsent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.211.7(c), and the Indemnifying Party will shall bear its own costs and expenses with respect to such participation.