Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).
Appears in 1 contract
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 6.1 (the “"Indemnified Party”") shall give to the party(ies) from whom indemnification is sought (the "Indemnifying Party") prompt written notice (in the case of indemnification under Section 6.1(a), will give [**] written such notice shall be given to each of the Shareholders) of any third-party claim which may give rise to any indemnity obligation under this Section 6.1, and the other Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within thirty (30) days of receipt of the “Indemnifying Indemnified Party”)'s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its Party's indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually materially prejudiced by such failure or delayfailure. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to If the Indemnified Party, Party desires to assume and control the participate in any such defense of the indemnification claim at its own expense with counsel selected assumed by the Indemnifying Party Party, it may do so at its sole cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an the Indemnified Party will have be entitled to participate in any such defense with separate counsel at the right to retain its own counsel, at its own expense, except that the fees and expenses expense of the Indemnified Party if, in the reasonable judgment of counsel to the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume the any such defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)or fails to diligently pursue any such defense, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on be liable for all reasonable costs and expenses incurred by the Indemnified Party’s interests (Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including any rights under this Agreement or reasonable fees and disbursements of counsel. The parties hereto agree to reasonably cooperate with each other in connection with the scope or enforceability defense of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), consent will not be unreasonably withheld withheld, delayed or delayedconditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Partynot, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party, which will not be unreasonably withheld, delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party pursuant is not disputed by the Indemnifying Party within twenty (20) days after the Indemnifying Party's having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 6.1(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (any of the foregoing, a "Resolution"), then (A) in the case of indemnification under Section 6.1(b), the Buyer will pay to this the Shareholder Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such Shareholder Indemnified Party as set forth in such Resolution, or (B) in the case of indemnification under Section 15.3 (Indemnification Procedure6.1(a), the Buyer will deliver evidence of such Resolution to each Shareholder, whereupon the Shareholders, jointly or severally, will deliver to the Buyer Indemnified Party an amount equal to the Losses of such Buyer Indemnified Party as set forth in such Resolution. At the election of the Shareholders, the amount to be delivered to the Buyer Indemnified Party in accordance with the immediately preceding sentence may be deducted from the 2016 Quarterly Payments or the Earn-Out Payments, if any. Except as otherwise specifically provided in Section 6.1(d), the depletion of the 2016 Quarterly Payments or the Earn-Out Payments, if any, will not serve as a bar to recovery by the Buyer Indemnified Parties from the Shareholders of any indemnifiable Losses, and the Buyer Indemnified Parties will be entitled to look directly to the Shareholders, jointly and severally, for any Losses in excess of the such amounts, and such Losses will be the obligations of the Shareholders, jointly and severally, as provided in Section 6.1(a) and will be paid to the applicable Buyer Indemnified Party promptly following such Resolution.
Appears in 1 contract
Indemnification Procedure. Each PartyIf any Claim covered by Article 13 is brought:
13.3.1. the indemnified Party shall promptly notify the indemnifying Party in writing of such Claim, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any the failure or delay in providing to provide such notice will within a reasonable period of time shall not relieve the Indemnifying indemnifying Party of any of its indemnification obligation, obligations hereunder except to the extent it the indemnifying Party is actually prejudiced by such failure or delay;
13.3.2. Each the indemnifying Party will promptly furnish to shall assume, at its cost and expense, the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the sole defense of the indemnification claim at its own expense with such Claim through counsel selected by the Indemnifying indemnifying Party and reasonably acceptable to the Indemnified other Party; provided, howeverexcept that those indemnified may at their option and expense select and be represented by separate counsel;
13.3.3. the indemnifying Party shall maintain control of such defense and/or the settlement of such Claim;
13.3.4. the indemnified Party may, that an Indemnified at its option and expense, participate in such defense, and if it so participates, the indemnifying Party and the indemnified Party shall cooperate with one another in such defense;
13.3.5. the indemnifying Party will have authority to consent to the right entry of any settlement or otherwise to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation dispose of such Indemnified Party by Claim (provided and only to the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying extent that an indemnified Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedurehave to admit liability and such judgment does not involve equitable relief), then the Indemnified and an indemnified Party may defend not consent to the indemnification claim but will have no obligation entry of any judgment, enter into any settlement or otherwise to do so. The Indemnified Party will not settle or compromise the indemnification claim dispose of such Claim without the prior written consent of the Indemnifying Party, and indemnifying Party (not to be unreasonably withheld or delayed); and
13.3.6. the Indemnifying indemnifying Party will not settle or compromise shall pay the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability full amount of any Patentsjudgment, Confidential Informationaward or settlement with respect to such Claim and all other costs, fees and expenses related to the resolution thereof; provided, however, that such other costs, fees and expenses have been incurred or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Partyagreed, as the case may be), will not be unreasonably withheld by the indemnifying Party in its defense or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control settlement of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Claim.
Appears in 1 contract
Sources: Master Services Agreement (Larimar Therapeutics, Inc.)
Indemnification Procedure. Each Party, if A Party seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”)) shall notify, will give [**] written notice of the claim to in writing, the other Party party (the “Indemnifying Party”); provided) within fifteen (15) days from the assertion of any claim or discovery of any fact upon which the Indemnified Party intends to base a claim for indemnification. An Indemnified Party's failure to so notify the Indemnifying Party shall not, however, that any failure or delay in providing relieve such notice will not relieve the Indemnifying Party of its indemnification obligation, from any liability under this Agreement to the Indemnified Party with respect to such claim except to the extent it that such Indemnifying Party is actually prejudiced by such failure denied, during the period of delay in notice, the opportunity to remedy or delay. Each Party will promptly furnish otherwise mitigate the event or activity(ies) giving rise to the claim for indemnification and thereby suffers or otherwise incurs additional liquidated or other Party copies readily quantifiable damages as a result of all papers and official documents received in respect of any Lossessuch failure. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, while reserving the right to assume and control contest its obligations to indemnify hereunder, shall be responsible for the defense of any claim, demand, lawsuit or other proceeding in connection with which the Indemnified Party claims indemnification claim hereunder. The Indemnified Party shall have the right at its own expense to participate jointly with counsel selected by the Indemnifying Party and reasonably acceptable in the defense of any such claim, demand, lawsuit or other proceeding, but with respect to any issue involved in such claim, demand, lawsuit or other proceeding with respect to which the Indemnifying Party has acknowledged its obligation to indemnify the Indemnified Party; providedparty hereunder, however, that an Indemnified the Indemnifying Party will shall have the right to retain its own select counsel, at its own expensesettle, except that try or otherwise dispose of or handle such claim, demand, lawsuit or other proceeding on such terms as the fees and expenses Indemnifying Party shall deem appropriate, subject to any reasonable objection of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).
Appears in 1 contract
Sources: Development and Manufacturing Agreement (Interpharm Holdings Inc)
Indemnification Procedure. Each Party, if seeking If any Indemnified Party intends to assert a claim for indemnification against an Indemnifying Party under any of the indemnification provisions of this Article 15 Agreement (Indemnification) (the “Indemnified Party”a "Claim"), the following procedures will give [**] written apply:
10.7.1 The Indemnified Party shall notify the Indemnifying Party in writing within a reasonable period of time after the Indemnified Party receives notice of or otherwise has actual knowledge of an event giving rise to a Claim, and shall provide to the Indemnifying Party as soon as practicable thereafter all information and documentation necessary to support and verify the Claim being asserted, and the Indemnifying Party shall be given access to all books and records in the possession or control of the Indemnified Party which the Indemnifying Party reasonably determines to be related to such Claim.
10.7.2 Promptly after receipt by the Indemnified Party of notice of the claim commencement by any third party of any litigation or proceeding or other event which might result in the Indemnifying Party becoming obligated to indemnify or make any other payment under any indemnification provisions of this Agreement, the other Indemnified Party (shall, if a Claim in respect thereof is to be made thereunder, notify the “Indemnifying Party”); provided, however, that any failure Party forthwith in writing of the commencement or delay in providing occurrence thereof. Failure of the Indemnified Party to give such notice will shall not relieve the Indemnifying Party from any liability which it may have on account of its this indemnification obligationor otherwise, except to the extent it that the Indemnifying Party is actually materially prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. thereby.
10.7.3 The Indemnifying Party will shall have the right, exercisable by written notice to the Indemnified Partywithin 30 days after being notified in accordance with subparagraph 10.7.2 hereof, to assume and control the defense of the indemnification claim at its own expense of, or otherwise contest, any such litigation, proceeding or other action with counsel selected by the Indemnifying Party and reasonably acceptable satisfactory to the Indemnified Party; provided, however, that an unless and until the Indemnifying Party shall assume such defense or contest pursuant to this subparagraph 10.7.3, the Indemnified Party will shall have the right right, if necessary or appropriate, to retain its own counselconduct or control the defense or contest thereof after reasonable notice to the Indemnifying Party, at its own expenseunder the circumstances, except that but without the fees and expenses of Indemnifying Party's consent. Upon the Indemnified Party’s counsel will be paid election by the Indemnifying Party if representation of to assume the defense of, or otherwise contest, such Indemnified Party by the counsel retained by litigation, proceeding or other action, the Indemnifying Party would shall not be inappropriate due to actual liable for any legal or potential differing interests between other expenses subsequently incurred by the Indemnified Party and any other party represented by such counsel in such proceedings. If connection with the defense thereof unless the Indemnifying Party does not assume fails to take reasonable steps necessary to diligently defend or otherwise contest such claim within 20 days after receiving notice from the defense of Indemnified Party stating that the indemnification claim as described Indemnified Party believes the Indemnifying Party has failed to take such steps, in this Section 15.3 (Indemnification Procedure), then which case the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, assume its own defense and the Indemnifying Party will not settle or compromise shall be liable for any expenses therefor.
10.7.4 Anything in this paragraph 10.7 to the indemnification claim in any manner that would have an adverse effect on contrary notwithstanding, the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld), which consentsettle or compromise any Claim, consent to the entry of any judgment in each case (respect of such Claim or the implementation of any plan of remediation; provided, however, that such consent shall not be required for any settlement, compromise, judgment or plan involving only the payment of money by the Indemnifying Party and imposing no other costs or burdens on the assets or operation of the business of the Indemnified Party;
10.7.5 With respect to any event or condition which might result in the Indemnifying Party becoming obligated to indemnify or make any other payment under any indemnification provisions of this Agreement, other than litigation, proceedings or actions which are governed by subparagraphs 10.7.2, 10.7.3 and 10.7.4 hereof, the Indemnified Party shall deliver to the Indemnifying Party, as soon as practicable after giving notice to the case may beIndemnifying Party of such event or condition, a proposal describing in reasonable detail the actions to be taken in connection with such event or condition and an estimate of the costs associated with such actions (the "Initial Proposal"), will . The Indemnifying Party shall have the right to propose changes (the "Proposed Changes") to the Initial Proposal with respect to specific actions or costs described therein which the Indemnifying Party can establish are not be unreasonably withheld or delayedcommercially reasonable. The Indemnified Party will reasonably cooperate with shall review the Proposed Changes, incorporate any such Proposed Changes required under the applicable standard into the final proposal for action (the "Final Proposal") and notify the Indemnifying Party at the Indemnifying Party’s expense and of which, if any, Proposed Changes will make available to be so incorporated. Thereafter, the Indemnifying Party shall be liable for all pertinent information under expenses for the control Final Proposal in accordance with the other terms of this Agreement
10.7.6 In the event of payment by an Indemnifying Party pursuant to the terms of this Agreement, such Indemnifying Party shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnified Party, which information will Indemnified Party shall do everything that may be subject reasonably required to Article 14 (Confidentiality)secure such rights. The Indemnifying Party will provide periodic updates shall have the right to pursue any remedy of the Indemnified Party (and its counsel, if applicable) regarding its defense against any predecessor in title or ownership of any of the action Purchased Assets; and
10.7.7 Any disputes regarding indemnification under this Agreement shall be settled in accordance with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)11 herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Strategic Diagnostics Inc/De/)
Indemnification Procedure. Each PartyThe obligation of the Company, if seeking indemnification under this Article 15 (Indemnification) Buyer, Parent or Seller, as applicable (the “Indemnified Party”"INDEMNIFYING PARTY"), will give [**] to indemnify, hold harmless, defend and reimburse another party (the "INDEMNIFIED PARTY", which with respect to Seller shall also include all Seller Indemnified Persons and with respect to the Buyer shall also include all Buyer Indemnified Persons) under Section 11.01 hereof with respect to any claim for which such indemnification is sought (a "CLAIM") is conditioned upon receiving from such Indemnified Party written notice of the claim to the other such Claim promptly after such Indemnified Party (the “Indemnifying Party”)becomes aware of such Claim; provided, however, that any failure or delay in providing giving such notice will shall not relieve the release an Indemnifying Party of from its indemnification obligation, obligations under this Article XI except to the extent it is actually and only to the extent that such Indemnified Party was prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will shall at its sole expense defend, contest, settle or otherwise protect against any Claim (including without limitation by taking reasonably necessary or appropriate action to remediate) with legal counsel or other appropriate consultants or experts (collectively, "EXPERTS") of its own selection that are reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right, exercisable by written notice to but not the Indemnified Partyobligation, to assume and control the defense (i) elect to defend, contest, settle or otherwise protect against such claims with Experts of the indemnification claim at its own expense choice, (ii) participate in the defense, contest, settlement or other protection of such claims with counsel selected by the Indemnifying Party Experts of its own choice, and reasonably acceptable to the Indemnified Party(iii) assert any and all defenses, cross claims or counterclaims it may have; provided, however, that an Indemnified Party will have the right to retain its own counselsuch election, participation and assertion shall be at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid 's sole cost and expense, notwithstanding anything in this Agreement to the contrary, unless (x) the Indemnified and Indemnifying Parties have agreed otherwise, (y) representation of both parties by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party same Experts would be inappropriate due to actual or potential differing interests between them or (z) the Indemnifying Party fails to take reasonably necessary or appropriate action and employ appropriate Experts that are reasonably satisfactory to the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense within a reasonable period of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality)time. The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will shall not be liable for any settlement of a Claim effected without its prior written consent (which shall not be unreasonably withheld, delayed or other disposition conditioned). The Indemnifying Party shall not settle any Claim without the relevant Indemnified Party's prior written consent (which shall not be unreasonably withheld, conditioned or delayed) unless the settlement includes an unconditional general release of Losses by the such Indemnified Party if such settlement is reached without from all Liabilities that are the written consent subject matter of the proceeding. The Indemnified Party shall cooperate, and shall cause each other Indemnified Party to at all times cooperate, in all reasonable ways with, make (subject to the assertion of attorney-client and other applicable privileges) its respective relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnifying Party pursuant in its defense, contest, settlement or protection of any Claim subject to this Section 15.3 (Indemnification Procedure).indemnification
Appears in 1 contract
Sources: Stock Purchase and Recapitalization Agreement (Paxar Corp)
Indemnification Procedure. Each In any case under this Agreement where one Party has indemnified the other against any Claim, indemnification shall be conditioned on compliance with the procedure outlined below:
(a) Provided that prompt notice is given of a Claim for which indemnification might be claimed, unless the failure to provide such notice does not actually and materially prejudice the interests of the Party to whom such notice is to be provided, the Indemnifying Party promptly will defend, contest, or otherwise protect against any such Claim at its own cost and expense. Such notice shall describe the Claim in reasonable detail and shall indicate the amount (estimated, if necessary) of the loss that has been or may be suffered by the Indemnified Party.
(b) The Indemnified Party may, but will not be obligated to, participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. Indemnifying Party from liability with respect to the particular matter. The Indemnifying Party may only settle or compromise the matter subject to indemnification without the consent of the Indemnified Party if such settlement includes a complete release of all Indemnified Parties as to the matters in dispute. The Indemnified Party will not unreasonably withhold, delay or condition its consent to any settlement or compromise that requires its consent.
(c) In the event that the Indemnifying Party fails to timely defend, contest, or otherwise protect against any such Claim, the Indemnified Party may, but will not be obligated to, defend, contest, or otherwise protect against the same, and make any compromise or settlement thereof and recover the entire costs thereof from the Indemnifying Party, if seeking indemnification under this Article 15 (Indemnification) (including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Claim or suit or the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”)compromise or settlement thereof; provided, however, that any failure or delay in providing such notice will not relieve if the Indemnifying Party undertakes the defense of such matter, the Indemnified Party shall not be entitled to recover from the Indemnifying Party for its costs incurred in the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party and reasonable costs of providing assistance.
(d) The Indemnified Party shall cooperate and provide such assistance as the Indemnifying Party may reasonably request in connection with the defense of the matter subject to indemnification obligationand in connection with recovering from any third parties amounts that the Indemnifying Party may pay or be required to pay by way of indemnification hereunder. The Indemnified Party shall take commercially reasonable steps to protect its position with respect to any matter that may be the subject of indemnification hereunder in the same manner as it would any similar matter where no indemnification is available.
(e) If and to the extent that any indemnification obligation under this Section 13.2 is unenforceable for any reason, the Indemnifying Party hereby agrees to make the maximum contribution permissible under Applicable Law to the payment and satisfaction of the losses of the Indemnified Party, except to the extent it is actually prejudiced such losses are found in a final, nonappealable judgment by such failure or delay. Each Party will promptly furnish a court of competent jurisdiction to the other Party copies of all papers and official documents received in respect of have resulted from any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual gross negligence or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)willful misconduct.
Appears in 1 contract
Indemnification Procedure. Each Partya. Promptly after receipt by an indemnified party under Sections 6 and 7 of notice of the commencement of any action (including any governmental action), such indemnified party will, if seeking indemnification under this Article 15 (Indemnification) (a claim in respect thereof is to be made against any indemnifying party, deliver to the “Indemnified Party”), will give [**] indemnifying party a written notice of the claim commencement thereof and the indemnifying party shall have the right to the other Party (the “Indemnifying Party”); providedparticipate in, howeverand, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the indemnifying party so desires, jointly with any other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Partyindemnifying party similarly noticed, to assume and control the defense of the indemnification claim at its own expense thereof with counsel selected by the Indemnifying Party and reasonably acceptable mutually satisfactory to the Indemnified Party; providedindemnified and indemnifying parties, however, provided that an Indemnified Party will indemnified party shall have the right to retain its own counsel, at its own expense, except that with the fees and expenses of the Indemnified Party’s counsel will to be paid by the Indemnifying Party indemnifying party, if representation of such Indemnified Party indemnified party by the counsel retained by the Indemnifying Party indemnifying party would be inappropriate due to actual or potential differing interests (as reasonably determined by either party) between the Indemnified Party such indemnified party and any other party represented by such counsel in such proceedingsproceeding. If The failure to deliver written notice to the Indemnifying Party does not assume the defense indemnifying party within a reasonable time of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)commencement of any such action, then if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the Indemnified Party may defend indemnified party under Sections 6 or 7, respectively, to the indemnification claim extent of such prejudice, but will have no obligation the failure to do so. The Indemnified Party so deliver written notice to the indemnifying party will not settle relieve it of any liability that it may have to any indemnified party otherwise than under Sections 6 or compromise the indemnification claim without the prior written consent 7, respectively.
a. The obligations of the Indemnifying Party, Company and the Indemnifying Party will not settle or compromise shareholder under Sections 6 and 7, respectively, shall survive the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability completion of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent offering of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party shares made pursuant to this Section 15.3 Agreement.
a. The amount paid or payable by a party as a result of the losses, claims, damages, or liabilities (Indemnification Procedure)or actions or proceedings in respect thereof) referred to in Sections 6 and 7 shall include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.
Appears in 1 contract
Sources: Registration Rights Agreement (Global Energy Group Inc)
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 Promptly after the incurrence of any Losses by any Purchaser Indemnified Person or Participating Holder Indemnified Person (Indemnification) (the an “Indemnified Party”), or receipt by an Indemnified Party of notice of a Third Party Claim for which such Indemnified Party is entitled to indemnification pursuant to Section 8.1 or 8.2 (an “Indemnifiable Claim”), such Indemnified Party will give [**] the Indemnification Control Person written notice of the claim to the other Party thereof (the an “Indemnifying PartyIndemnification Notice”); provided, however, that any delay or failure or delay in providing such notice will not to so notify the Indemnification Control Person shall only relieve the Indemnifying Party of its indemnification obligation, except obligations to the extent extent, if at all, that it is actually materially prejudiced by reasons of such failure delay or delayfailure. Each Such notice by the Indemnified Party will promptly furnish to shall describe the other Party Indemnifiable Claim in reasonable detail, shall include copies of all papers material written evidence thereof and official documents received in respect shall indicate the estimated amount, if reasonably practicable, of any Lossesthe Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party will Indemnification Control Person shall have a period of thirty (30) days within which to respond to such Indemnification Notice. If the rightIndemnification Control Person accepts responsibility for the entirety of such Indemnifiable Claim within such thirty (30) day period, exercisable the Indemnification Control Person shall be entitled to compromise or defend, at its own expense and by written notice counsel chosen by the Indemnification Control Person and reasonably satisfactory to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Partysuch matter; provided, however, that notwithstanding any other provision in this Section 8.5 to the contrary, Section 7.5(f) shall be the exclusive provision governing procedures relating to indemnification if such Indemnifiable Claim is a Tax Claim. If the Indemnification Control Person rejects responsibility for the matter set forth in an Indemnification Notice in whole or in part or does not respond within thirty (30) days after receiving such Indemnification Notice, the Indemnified Party will shall be free to pursue, without prejudice to any of its rights hereunder, such remedies as may be available to the Indemnified Party under applicable Law at the Indemnifying Party’s expense. The Indemnified Party agrees to cooperate fully with the Indemnification Control Person and its counsel in the defense against any such Indemnifiable Claim. In any event, the Indemnified Party shall have the right to retain its own counsel, participate in a non-controlling manner and at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel expense in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do sosuch Indemnifiable Claim. The Indemnified Party will Indemnification Control Person shall not settle or compromise the indemnification claim without the prior written consent enter into a settlement of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), such Indemnifiable Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed), and until such consent is obtained the Indemnification Control Person shall continue the defense of such Indemnifiable Claim. If a firm offer is made to settle an Indemnifiable Claim (a) that is not a Tax Claim, (b) that does not involve any admission of liability or wrongdoing by any Indemnified Party or its Affiliates or the creation of financial or other obligation on the part of the Indemnified Party or its Affiliates, (c) provides for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Indemnifiable Claim, (d) does not involve injunctive relief binding upon the Indemnified Party or any of its Affiliates, and (e) such settlement does not encumber any of the material assets of any Indemnified Party or impose any restriction or condition that would apply to or materially affect any Indemnified Party or the conduct of any Indemnified Party’s business, which consent, in each case (by and the Indemnifying Party or Indemnified Partydesires to accept and agree to such offer, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at shall give written notice to that effect to the Indemnifying Indemnified Party’s expense . If the Indemnified Party fails to consent to such firm offer within thirty (30) days after its receipt of such notice, and will make available also fails to assume defense of such Indemnifiable Claim, the Indemnifying Party all pertinent information under may settle the control of Indemnifiable Claim upon the Indemnified Party, which information will be subject terms set forth in such firm offer to Article 14 (Confidentiality)settle such Indemnifiable Claim. The Indemnifying Party will provide periodic updates to If the Indemnified Party (and its counselhas assumed the defense pursuant to this Section 8.5, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will it shall not be liable for agree to any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding any provisions in this Section 15.3 8.5 to the contrary, the Indemnification Control Person shall not be entitled to assume or continue control of the defense of any Indemnifiable Claim if (A) such Indemnifiable Claim relates to or arises in connection with any governmental proceeding, action, indictment, allegation or investigation; (B) such Indemnifiable Claim relates primarily to Intellectual Property; (C) such Indemnifiable Claim seeks an injunction or equitable relief against the Indemnified Party; (D) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; or (E) the Indemnification Procedure)Control Person fails to defend such Indemnifiable Claim in good faith. If the Indemnified Party controls the defense of any Indemnifiable Claim, the Indemnified Party shall be entitled to be reimbursed by the Indemnifying Party for its reasonable defense costs as such costs are incurred.
Appears in 1 contract
Indemnification Procedure. Each PartyIn case any action shall be commenced involving any person in respect of which indemnity may be sought pursuant to Section 15.1, if seeking indemnification under this Article 15 (Indemnification) 15.2 or 15.3 or the Trustee pursuant to Section 7.07 of the Indenture (the “"Indemnified Party”"), will give [**] written notice of the claim to Indemnified Party shall promptly notify the other Party person against whom such indemnity may be sought (the “"Indemnifying Party”); provided, however, that any failure or delay ") in providing such notice will not relieve writing and the Indemnifying Party shall assume the defense of its indemnification obligationsuch action, except including the employment of counsel reasonably satisfactory to the extent it is actually prejudiced by such failure or delay. Each Indemnified Party will promptly furnish to and the other Party copies payment of all papers fees and official documents received expenses of such counsel, as incurred. Any Indemnified Party shall have the right to employ separate counsel in respect any such action and participate in the defense thereof, but the fees and expenses of any Losses. The such counsel shall be at the expense of the Indemnified Party, unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party will shall have failed to assume the right, exercisable by written notice defense of such action or employ counsel reasonably satisfactory to the Indemnified Party, or (iii) the named parties to assume any such action (including any impleaded parties) include both the Indemnified Party and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party , and reasonably acceptable the Indemnified Party shall have been advised by such counsel in writing that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnified Party; provided, however, that an Indemnified Party will (in which case the Indemnifying Party shall not have the right to retain its own counselassume the defense of such action on behalf of the Indemnified Party). In any such case, at its own expensethe Indemnifying Party shall not, except that in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one local counsel) for all Indemnified Parties and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Indemnified Party’s counsel will be paid . The Indemnifying Party shall indemnify and hold harmless the Indemnified Party from and against any and all losses, claims, damages, liabilities and judgments by reason of any settlement of any action (i) effected with its written consent, or (ii) effected without its written consent if the settlement is entered into more than twenty (20) Business Days after the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between shall have received a request from the Indemnified Party for reimbursement for the fees and expenses of counsel (in any other party represented by case where such counsel in such proceedings. If fees and expenses are at the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent expense of the Indemnifying Party) and, and prior to the date of such settlement, the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would shall have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed failed to Licensee by ▇▇▇▇▇▇ hereunder)comply with such reimbursement request. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened action in respect of which consent, in each case (the Indemnified Party is or could have been a party and indemnity or contribution may be or could have been sought hereunder by the Indemnifying Party or Indemnified Party, as unless such settlement, compromise or judgment (i) includes an unconditional release of the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with from all liability on claims that are or could have been the Indemnifying Party at the Indemnifying Party’s expense subject matter of such action and will make available (ii) does not include a statement as to the Indemnifying Party all pertinent information under the control or an admission of fault, culpability or a failure to act, by or on behalf of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).
Appears in 1 contract
Sources: Cash Collateral and Disbursement Agreement (Windsor Woodmont Black Hawk Resort Corp)
Indemnification Procedure. Each Party, if If either Party is seeking indemnification under this Article 15 (Indemnification) Sections 9.1 or 9.2 (the “Indemnified Party”), will give [**] written notice of the claim to it shall inform the other Party (the “Indemnifying Party”); provided, however, that any failure or delay ) in providing such notice will not relieve writing of the Indemnifying Party of its indemnification obligation, except Claim giving rise to the extent it is actually prejudiced by obligation to indemnify pursuant to such failure or delay. Each Party will promptly furnish to Section as soon as reasonably practicable after receiving notice of the other Party copies of all papers and official documents received in respect of any LossesClaim. The Indemnifying Party will shall have the right, exercisable by written notice right to assume the defense of any such Claim for which it is obligated to indemnify the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party and the Indemnifying Party’s insurer as the Indemnifying Party may reasonably request, and at the Indemnifying Party’s cost and expense. The Indemnified Party shall have the right to assume and control the defense of the indemnification claim participate, at its own expense and with counsel selected of its choice, in the defense of any Claim that has been assumed by the Indemnifying Party. Neither Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will shall have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified indemnify the other Party will not settle or compromise the indemnification claim in connection with any settlement made without the prior written consent of the Indemnifying Party’s written consent, and the which consent shall not be unreasonably withheld or delayed. The Indemnifying Party will may not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), Claim without the prior written consent of the Indemnified Party, which consentsuch consent shall not be unreasonably withheld, in each case (by conditioned, or delayed; provided, however, that the Indemnifying Party or Indemnified Party, as the case may be), will shall not be unreasonably withheld or delayed. The required to obtain such consent if the settlement: (a) involves only the payment of money and does not cause the Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control be subject to any non-indemnified liability or injunctive or other similar type of relief; (b) does not require an admission by the Indemnified Party; and (c) does not adversely affect the intellectual property rights Controlled by, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to or the rights or licenses granted under this Agreement to, the Indemnified Party (and or its counselAffiliate). If the Parties cannot agree as to the application of Section 9.1 or 9.2 as to any Claim, if applicable) regarding its defense pending resolution of the action dispute pursuant to Section 11.7, the Parties may conduct separate defenses of such Claims, with immediate notice regarding any material developments. The Indemnifying each Party will not be liable for any settlement retaining the right to claim indemnification from the other Party in accordance with Section 9.1 or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent 9.2 upon resolution of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)underlying Claim.
Appears in 1 contract
Sources: License Agreement (Eyenovia, Inc.)
Indemnification Procedure. Each Party, if seeking indemnification (a) An Indemnified Party that seeks indemnity under this Article 15 (Indemnification) (the “Indemnified Party”), 7 will give [**] written notice certified by an officer of the claim Indemnified Party (an “Officer’s Certificate”) to the other Party party from whom indemnification is sought (the an “Indemnifying Party”); , the Designated Member, and the Escrow Agent containing (i) a description and, if known, the estimated amount of any Losses incurred or reasonably expected to be incurred by the Indemnified Party, (ii) a reasonably detailed explanation of the basis for the Officer’s Certificate to the extent of the facts then known by the Indemnified Party, and (iii) a demand for payment of those Losses, provided, however, that in order to be valid any failure such Officer’s Certificate must be delivered to the Members on or delay prior to the expiration of any applicable representations, warranties, covenants, agreements and obligations as set forth in providing such notice will not relieve Section 7.1. Within forty-five (45) days after delivery of an Officer’s Certificate, the Indemnifying Party or the Designated Member may deliver to the Indemnified Party a written response in which the Indemnifying Party or the Designated Member will either (i) agree that the Indemnified Party is entitled to receive payment of its all of the Losses at issue in the Officer’s Certificate or (ii) dispute the Indemnified Party’s entitlement to indemnification obligationby delivering a notice of objection to the Indemnified Party and the Escrow Agent (the “Objection Notice”) setting forth in reasonable detail each disputed item, the basis for each such disputed item and certifying that all such disputed items are being disputed in good faith. If neither the Indemnifying Party nor the Designated Member takes either of the foregoing actions within forty-five (45) days after delivery of the Officer’s Certificate, then the Indemnifying Party and the Designated Member will be deemed to have irrevocably accepted the Officer’s Certificate. If the Indemnifying Party or the Designated Member delivers an Objection Notice to the Indemnified Party and the Escrow Agent, then the Indemnified Party and either the Indemnifying Party or the Designated Member will attempt in good faith, for a period of thirty (30) days from the Indemnified Party’s receipt of the Objection Notice, to agree to the amount of the Losses at issue in the Officer’s Certificate. Any resolution by the Indemnified Party and either the Indemnifying Party or the Designated Member during such thirty (30) day period as to any or all of the Losses at issue in the Officer’s Certificate will be final and binding with respect to such Losses. With respect to Losses at issue in the Officer’s Certificate which are not resolved by the end of thirty (30) day period, the amount of such Losses at issue in the Officer’s Certificate (less the amount, if any, acknowledged in the Objection Notice by the Indemnifying Party as due the Indemnified Party), will be treated as a disputed claim to be settled pursuant to Section 8.12. Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(b) In the event that an Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) that the Indemnified Party reasonably believes may result in a demand against the Escrow Fund or for other indemnification pursuant to this Article 7, Parent shall promptly notify the Designated Member of such claim (but the failure to so notify the Designated Member shall not adversely affect the Indemnified Party’s right to indemnification or compensation pursuant to this Article 7 except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to materially prejudices the other Party copies of all papers and official documents received in respect of any LossesMembers). The Indemnifying Party will have may, at its election and expense, undertake and conduct the right, exercisable by defense of such Third Party Claim so long as (i) the Indemnifying Party gives written notice to the Indemnified Party, to assume and control Party within fifteen (15) days after the defense Indemnified Party has given notice of the indemnification claim at its own expense with counsel selected by Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have adequate financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages not in excess of the limitations set forth herein and the Third Party Claim does not seek an injunction or other equitable relief against the Indemnified Party; provided, however(iv) the Third Party Claim does not relate to or otherwise arise in connection with any criminal action, (v) the settlement or an adverse judgment of the Third Party Claim is not, in the good faith and reasonable judgment of the Indemnified Party, likely to be adverse to the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (vi) the Indemnifying Party conducts the defense of the Third Party Claim actively, competently and diligently, and (vii) the Third Party Claim does not involve any claim in respect of Taxes, any Governmental Body, or an Action in which Parent or any of its Affiliates is named as a party and where the underlying claims in the proceeding are of a nature that would, if a judgment was entered against Parent or any of its Affiliates, reasonably be anticipated to substantially and adversely affect the goodwill or reputation of Parent or any of its Affiliates. Should an Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to retain its own participate in the defense thereof and to employ counsel, at its own expense, except that the fees and expenses of expense (unless there are one or more legal defenses available to the Indemnified Party’s counsel will be paid by Party that conflict with those available to the Indemnifying Party if or the representation of such Indemnified Party both parties by the same counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing conflicting interests between them, in which case the expenses of such separate counsel shall be borne by the Indemnifying Party), separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party and for any other party represented by such counsel in such proceedings. period during which the Indemnifying Party has not assumed the defense thereof.
(c) If the Indemnifying Party does not chooses to defend any Third Party Claim and is entitled to assume the defense of the indemnification claim as described in this a Third Party Claim pursuant to Section 15.3 (Indemnification Procedure7.3(b), then all the Indemnified parties hereto will cooperate in the defense or prosecution of such Third Party may defend Claim. Such cooperation will include the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and the making employees and other representatives and advisors available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will not settle or compromise consent to the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability entry of any Patents, Confidential Information, judgment or other rights licensed enter into any compromise or settlement with respect to Licensee by ▇▇▇▇▇▇ hereunder), the Third Party Claim without the prior written consent of the Indemnified Party, which consentnot to be unreasonably withheld, in each case conditioned or delayed, unless such judgment, compromise or settlement (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results in the full and general release of the Indemnified Party from all Losses arising or relating to, or in connection with, the Third Party Claim, and (iii) involves no finding or admission of any violation of any Legal Requirement or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party. Whether or not the Indemnifying Party will have assumed the defense of a Third Party Claim, as an Indemnified Party shall not admit any Liability with respect to, or settle, compromise or discharge, any Third Party Claim without the case may be)prior written consent of Indemnifying Party, will which consent shall not be unreasonably withheld withheld, conditioned or delayed. The Notwithstanding the provisions of this Article 7, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party will reasonably cooperate for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(d) The Indemnifying Party at the Indemnifying Party’s expense and will make available shall not be entitled to the Indemnifying Party all pertinent information under the control of require that any Action be made or brought against any other Person before Action is brought or claim is made against it hereunder by the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (STAMPS.COM Inc)
Indemnification Procedure. Each Party, if seeking An Indemnified Party shall promptly notify the OM upon becoming aware of a Third-Party Claim with respect to which OM is obligated to provide indemnification under this Article 15 Section (Indemnification) (the “"Indemnified Party”Claim"), will give [**] written notice . OM shall promptly assume control of the claim to defense and investigation of the other Party (the “Indemnifying Party”); providedIndemnified Claim, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party with counsel of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and choosing/reasonably acceptable to the Indemnified Party; provided, however, that an and the Indemnified Party will have shall fully cooperate with OM in connection therewith, in each case at OM's sole cost and expense. The Indemnified Party may participate in the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation defense of such Indemnified Claim, with counsel of its own choosing and at OM’s cost and expense. OM shall not settle any Indemnified Claim on any terms or in any manner that adversely affects the rights of any Indemnified Party by without the/such PHYTOCHEM Indemnified Party's prior written consent. If OM fails or refuses to assume control of the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between defense of such Indemnified Claim, the Indemnified Party and any other party represented by shall have the right, but no obligation, to defend against such counsel Indemnified Claim, including settling such Indemnified Claim after giving notice to OM, in each case in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim manner and on such terms as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do sodeem appropriate. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on Neither the Indemnified Party’s interests (including 's failure to perform any rights obligation under this Agreement Section nor any act or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent omission of the Indemnified PartyParty in the defense or settlement of any Indemnified Claim shall relieve OM of its obligations under this Section, which consentincluding with respect to any Losses, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available except to the Indemnifying Party all pertinent information under extent that OM can demonstrate that it has been materially prejudiced as a result thereof. For purposes of this Agreement "Losses" means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the control cost of enforcing any right to indemnification hereunder and the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense cost of the action with immediate notice regarding pursuing any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)insurance providers.
Appears in 1 contract
Sources: Development & Commercialization Agreement (Nutrafuels Inc)
Indemnification Procedure. Each Party, if seeking party entitled to indemnification under this Article 15 (Indemnification) Agreement (the “"Indemnified Party”), will ") shall give [**] written prompt notice of the claim to the other party (the "Indemnifying Party") required to provide indemnification under this Agreement after such Indemnified Party has received actual knowledge of any third-party claim as to which indemnity may be sought, and shall permit the Indemnifying Party (the “at Indemnifying Party”)'s expense) to assume the defense of any claim or any litigation resulting therefrom; provided, howeverthat counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party, and the Indemnified Party may participate in such defense, but only at such Indemnified Party's expense; and provided, further, that the omission by any failure or delay Indemnified Party to give prompt notice as provided in providing such notice will this Article IX shall not relieve the Indemnifying Party of its indemnification obligationobligations under this Agreement, except to the extent it is actually prejudiced by such that the omission results in a failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written actual prompt notice to the Indemnified Indemnifying Party and such Indemnifying Party is damaged as a result of the failure to give prompt notice. No Indemnifying Party, to assume and control in the defense of the indemnification such claim at its own expense or litigation, shall, except with counsel selected the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the Indemnifying Party and reasonably acceptable claimant or plaintiff to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by of a release from all liability with respect to such claim or litigation. In the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If event that the Indemnifying Party does not assume accept the defense of the indemnification claim any matter as described provided in this Section 15.3 (Indemnification Procedure)section 9.2, then the Indemnified Party may shall have the full right to defend the indemnification against any such claim but will have no obligation or demand, and shall be entitled to do so. The Indemnified Party will not settle or compromise the indemnification agree to pay in full such claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim demand in any manner that would have an adverse effect on the Indemnified Party’s interests (including 's sole discretion. In any rights under this Agreement or the scope or enforceability of any Patentsevent, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as EMGL and the case may be), will not Investors shall each cooperate in the defense of such action and the records of each shall be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject other with respect to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)defense.
Appears in 1 contract
Indemnification Procedure. Each PartyIn the event that a Party seeks indemnification hereunder with respect to a Third Party Claim, if the Party seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), ) will give [**] written notice of the claim to promptly notify the other Party (the “Indemnifying Party”); ) in writing (an “Indemnification Claim Notice”) of any Third Party Claim in respect of which it intends to claim indemnification under this Article XII upon actual knowledge of any such claim or proceeding resulting in Losses, provided, however, that any failure or delay in providing such notice to notify will not relieve excuse any obligation of the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delaydelay materially prejudices the defense of such Third Party Claim. Each Party will promptly furnish The Indemnification Claim Notice must contain a description of the claim and the nature and amount of such Losses (to the other Party copies extent that the nature and amount of all papers and official documents received in respect of any Lossessuch Losses is known at such time). The Indemnifying Party may, at its option, assume exclusive control of the defense and settlement of the Third Party Claim, subject to the limitations on settlement set forth below. If the Indemnifying Party assumes such defense, then such assumption by the Indemnifying Party will have not be construed as an acknowledgement that the right, exercisable by written notice Indemnifying Party is liable to indemnify the Indemnified Party of any defenses it may assert against the Indemnified Party, to assume ’s claim for indemnification and control the Indemnifying Party may appoint as lead counsel in the defense of the indemnification claim at its own expense with Third Party Claim any legal counsel selected by the Indemnifying Party and reasonably acceptable to (the Indemnifying Party will consult with the Indemnified Party with respect to a possible conflict of interest of such counsel retained by the Indemnifying Party; provided, however, that an ). The Indemnified Party will have the right to retain its own participate in the defense thereof and to employ counsel, at its own expense, except that separate from the fees and expenses of the Indemnified Party’s counsel will be paid employed by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedingsParty. If the Indemnifying Party does not commence actions to assume control of the defense of a Third Party Claim within thirty (30) days after the indemnification claim as described in receipt by the Indemnifying Party of the Indemnification Claim Notice required pursuant to this Section 15.3 (Indemnification Procedure)12.3, then the Indemnified Party may defend the indemnification claim but will have no obligation the right to do sodefend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the Indemnifying Party. The Indemnified Party will cooperate as may be reasonably requested by the Indemnifying Party (and at the Indemnifying Party’s expense) in order to ensure the proper and adequate defense of any action, claim or liability covered by this indemnification. The Indemnifying Party may not settle or compromise otherwise dispose of any Third Party Claim without the indemnification claim prior written consent of the Indemnified Party unless such settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party and contains an unconditional release of the Indemnified Party in respect of such Third Party Claim. Regardless of whether the Indemnifying Party chooses to defend or prosecute any Third Party Claim, no Indemnified Party will admit any liability with respect to or settle or otherwise dispose of any Third Party Claim for which the Indemnifying Party may be liable for Losses under this Agreement without the prior written consent of the Indemnifying Party, and such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing provisions of this Section 12.3, in the event that the Indemnified Party believes in good faith that a bona fide conflict exists between the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on and the Indemnified Party’s interests (including Party or any rights under this Agreement other Indemnitees with respect to a claim or the scope or enforceability of any Patentssuit subject to indemnification hereunder, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of then the Indemnified PartyParty or any other Indemnitee will have the right to defend against any such claim or suit itself, which consentincluding by selecting its own counsel, in each case (with any reasonable attorney’s fees and litigation expenses being paid for by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to pay such fees and expenses either directly or will reimburse the Indemnified Party within thirty (and its counsel, if applicable30) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent days of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Party’s receipt of invoices for such fees and expenses.
Appears in 1 contract
Sources: Collaboration Agreement
Indemnification Procedure. Each If a party hereto (the "Indemnified Party, if seeking indemnification under ") asserts that another party (the "Indemnifying Party") has become obligated to indemnify pursuant to this Article 15 (Indemnification) (the “Indemnified Party”)VI, will give [**] written notice or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve which the Indemnifying Party of its indemnification obligation, except may become obligated to the extent it is actually prejudiced by such failure or delay. Each Indemnified Party will promptly furnish hereunder, the Indemnified Party shall give written notice to the other Indemnifying Party copies of all papers and official documents received within a sufficiently prompt time to avoid prejudice to the Indemnifying Party, specifying in respect of any Lossesreasonable detail the facts upon which the claimed right to indemnification is based. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counselshall, at its own expensecost, except that the fees and expenses of be entitled to contest or defend any action against the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise shall each be entitled to choose counsel of their choice and each party shall bear the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent cost of the Indemnified Partycounsel it so chooses. In the event of the settlement of an action for which indemnification is required, which consent, in each case (by the Indemnifying Party or shall not be required to indemnify the Indemnified PartyParty unless the Indemnifying Party shall have agreed to the terms of such settlement, as the case may be), will which agreement shall not be unreasonably withheld or delayedwithheld. The Indemnified Party will reasonably cooperate with the Any payment to be made by an Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control shall be made within thirty (30) days of the Indemnified Party, which information will be subject delivery of notice of an uncontested claim to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense indemnification or final determination of the action with immediate notice regarding any material developments. The Indemnifying Party will not amount to be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)indemnified.
Appears in 1 contract
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 6.3 (the “Indemnified Party”), will ) shall give [**] written notice of the claim to the other Party party(ies) from whom indemnification is sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 6.3(a), such notice shall be given to the Member) of any third-party claim which may give rise to any indemnity obligation under this Section 6.3, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within ten (10) days of receipt of the Indemnified Party’s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its Party’s indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually materially prejudiced by such failure or delayfailure. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to If the Indemnified Party, Party desires to assume and control the participate in any such defense of the indemnification claim at its own expense with counsel selected assumed by the Indemnifying Party Party, it may do so at its sole cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an the Indemnified Party will have be entitled to participate in any such defense with separate counsel at the right expense of the Indemnifying Party if, in the reasonable judgment of counsel to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume the any such defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)or fails to diligently pursue any such defense, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on be liable for all reasonable costs and expenses incurred by the Indemnified Party’s interests (Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including any rights under this Agreement or reasonable fees and disbursements of counsel. The parties hereto agree to cooperate with each other in connection with the scope or enforceability defense of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, which consentsettle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in each case (by the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayedParty and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Partynot, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party, which will not be unreasonably withheld, delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party pursuant is not disputed by the Indemnifying Party within thirty (30) days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 6.3(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (any of the foregoing, a “Resolution”), then (A) in the case of indemnification under Section 6.3(b), the Buyer will pay to this the Member Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such Member Indemnified Party as set forth in such Resolution, or (B) in the case of indemnification under Section 15.3 (Indemnification Procedure6.3(a), the Buyer will deliver evidence of such Resolution to the Member, whereupon the Member will deliver to the Buyer Indemnified Party an amount equal to the Losses of such Buyer Indemnified Party as set forth in such Resolution. At the election of the Member, the amount to be delivered to the Buyer Indemnified Party in accordance with the immediately preceding sentence may be deducted from the Closing Stock Issuance. Except as otherwise specifically provided in Section 6.3(d), the depletion of the Closing Stock Issuance will not serve as a bar to recovery by the Buyer Indemnified Parties from the Member of any indemnifiable Losses, and the Buyer Indemnified Parties will be entitled to look directly to the Member for any Losses in excess of the such amounts, and such Losses will be the obligations of the Member as provided in Section 6.3(a) and will be paid to the applicable Buyer Indemnified Party promptly following such Resolution.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Code Rebel Corp)
Indemnification Procedure. Each Party, if seeking Any party entitled to indemnification under -------------------------- this Article 15 Section (Indemnificationan "Indemnified Party") will give written notice to the party to be charged with indemnification (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “"Indemnifying Party”)") of any matters giving rise to a claim for indemnification; provided, however, that the failure of any failure or delay in providing such Indemnified Party hereunder to give notice will as provided herein shall not relieve the Indemnifying Party of its indemnification obligation, obligations under this Section except to the extent it that the Indemnifying Party is actually prejudiced by such failure to give notice. In case any action, proceeding or delay. Each claim is brought against an Indemnified Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The which indemnification is sought hereunder, the Indemnifying Party will have shall be entitled to participate in and, unless in the rightreasonable judgment of counsel to the Indemnified Party a conflict of interest between it and the Indemnifying Party may exist with respect to such action, exercisable by written notice proceeding or claim, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party, to assume and control . In the defense of the indemnification claim at its own expense with counsel selected by event that the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that advises an Indemnified Party that it will have the right contest such a claim for indemnification hereunder, or fails, within thirty (30) days of receipt of any indemnification notice to retain notify, in writing, such person of its own counselelection to defend, settle or compromise, at its own sole cost and expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of any action, proceeding or claim (or discontinues its defense at any time after it commences such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Proceduredefense), then the Indemnified Party may defend may, at its option, defend, settle or otherwise compromise or pay such action or claim. In any event, unless and until the Indemnifying Party elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnified Party's costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding shall be losses subject to indemnification claim but will have no obligation to do sohereunder. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and shall cooperate fully with the Indemnifying Party will not settle in connection with any settlement negotiations or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability defense of any Patents, Confidential Information, such action or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (claim by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available shall furnish to the Indemnifying Party all pertinent information under the control of reasonably available to the Indemnified Party, Party which information will be subject relates to Article 14 (Confidentiality)such action or claim. The Indemnifying Party will provide periodic updates to shall keep the Indemnified Party (and its counsel, if applicable) regarding its defense fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the Indemnifying Party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate in such defense with immediate notice regarding any material developmentscounsel of its choice at its sole cost and expense. The Indemnifying Party will shall not be liable for any settlement of any action, claim or other disposition proceeding affected without its prior written consent. Notwithstanding anything in this Section to the contrary, the Indemnifying Party shall not, without the Indemnified Party's prior written consent, settle or compromise any claim or consent to entry of Losses any judgment in respect thereof which imposes any future obligation on the indemnified party or which does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the indemnified party of a release from all liability in respect of such claim. The indemnification required by this Section shall be made by periodic payments of the amount thereof during the course of investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred, within ten (10) Business Days of written notice thereof to the Indemnifying Party so long as the Indemnified Party irrevocably agrees to refund such moneys if it is ultimately determined by a court of competent jurisdiction that such settlement is reached without party was not entitled to indemnification. The indemnity agreements contained herein shall be in addition to (a) any cause of action or similar rights of the written consent of Indemnified Party against the Indemnifying Party pursuant to this Section 15.3 or others, and (Indemnification Procedure)b) any liabilities the Indemnifying Party may be subject to.
Appears in 1 contract
Sources: Rescission and Settlement Agreement (Network Installation Corp)
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written Promptly after receipt by either party of notice of the assertion of any claim or the commencement of any action, suit or proceeding with respect to this Agreement, such party ("Indemnified Party") shall give written notice thereof to the other party ("Indemnitor") and will thereafter keep the Indemnitor reasonably informed with respect thereto, provided that failure of the Indemnified Party to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent, if any, it shall have been prejudiced thereby. In case any such action, suit or proceeding is brought against an Indemnified Party, the Indemnitor shall be entitled to participate in (and, in its discretion, to assume) the “Indemnifying defense thereof with counsel satisfactory to the Indemnified Party”); , provided, however, that the Indemnified Party shall be entitled to participate in any failure such action, suit or delay proceeding with counsel of its own choice at the expense of the Indemnitor if, in providing such notice the good faith judgment of the Indemnified Party's counsel, representation by the Indemnitor's counsel may present a conflict of interest or that there may be defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnitor. The Indemnitor will not relieve the Indemnifying Party of its indemnification obligationsettle any claim, except action, suit or proceeding which would give rise to the extent it is actually prejudiced Indemnitor's liability under its indemnity unless such settlement includes as an unconditional term thereof the giving by such failure the claimant or delay. Each Party will promptly furnish to the other Party copies plaintiff of all papers and official documents received in respect a release of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, in form and substance satisfactory to assume the Indemnified Party and control its counsel, from all liability with respect to such claim, action, suit or proceeding. If the Indemnitor assumes the defense of any claim, action, suit or proceeding as provided in this Section, the indemnification claim at Indemnified Party shall be permitted to join in the defense thereof with counsel of its own expense with counsel selected by the Indemnifying Party selection and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does Indemnitor shall not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)any claim, then action, suit or proceeding, the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The against such claim, action, suit or proceeding in such manner as it may deem appropriate, provided that an Indemnified Party will shall not settle any claim, action, suit or compromise proceeding which would give rise to the indemnification claim Indemnitor's liability under its indemnity without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified PartyIndemnitor, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will consent shall not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)withheld.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Arrow Financial Corp)
Indemnification Procedure. Each Party(a) Promptly after the incurrence of any Losses by any Person entitled to indemnification pursuant to Section 5.10, if seeking indemnification under this Article 15 8.2 or 8.3 hereof (Indemnification) (the an “Indemnified Party”), will including, any claim by a third party described in Section 8.7, which would reasonably be expected to give [**] written notice of rise to indemnification hereunder, the claim Indemnified Party shall deliver to the other Party from which indemnification is sought (the “Indemnifying Party”) a certificate (the “Claim Certificate”), which Claim Certificate shall:
(i) state that the Indemnified Party has paid or anticipates it will incur liability for Losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement; and
(ii) specify in reasonable detail (and have annexed thereto all material supporting documentation, including any material correspondence in connection with any Third-Party Claim and paid invoices for claimed Losses) each individual item of Loss included in the amount so stated, the date such item was paid, the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and an estimation of the amount to which such Indemnified Party claims to be entitled hereunder. The Indemnified Party shall not be precluded from making a claim for indemnification hereunder by any failure to provide timely notice of the existence of a Third Party Claim to the Indemnifying Party, except to the extent that the Indemnifying Party has been prejudiced as a direct result of such delay, in which case the Indemnified Party shall be so precluded to such extent.
(b) In the event that the Indemnifying Party shall object to the indemnification of an Indemnified Party in respect of any claim or claims specified in any Claim Certificate, the Indemnifying Party shall, within fifteen (15) days after receipt by the Indemnifying Party of such Claim Certificate, deliver to the Indemnified Party a written notice to such effect (an “Objection Notice”), specifying in reasonable detail the basis for such objection, and the Indemnifying Party and the Indemnified Party shall, within the thirty (30) day period beginning on the date of receipt by the Indemnified Party of such Objection Notice, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts within such time period, then the Indemnified Party shall be permitted to submit such dispute to a court of competent jurisdiction as set forth in Section 9.10.
(c) Claims for Losses (which, for the avoidance of doubt, shall in no event include any Losses in excess of the limitations contained in Sections 8.4(b) or 8.5(b) hereof): (i) specified in any Claim Certificate to which an Indemnifying Party shall not object pursuant to an Objection Notice within fifteen (15) days of receipt of such Claim Certificate, (ii) covered by a memorandum of agreement of the nature described in Section 8.6(b), (iii) the validity and amount of which have been the subject of judicial determination as provided by Section 9.10 or (iv) which have been settled with the consent of the Indemnifying Party, as described in Section 8.7, are hereinafter referred to, collectively, as “Agreed Claims”; provided, however, that (i) the amount of any failure or delay Agreed Claim shall include only the portion of such Agreed Claim that (together with the amount of all prior Agreed Claims) is in providing such notice will not relieve excess of the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to Deductible and the other Party copies applicable limitations contained in Section 8.4(a), (ii) if the aggregate amount of all papers Agreed Claims determined prior to such time shall have equaled or exceeded the Deductible and official documents received the other applicable limitations contained in respect Section 8.4(a), then the amount of any LossesAgreed Claim shall mean the entire amount of such Agreed Claim and (iii) except in the instances where the limitations set forth in Section 8.4(b) do not apply, the amount of such Agreed Claim (together with the amount of all prior Agreed Claims) shall not exceed the amount on deposit from time to time in the Indemnity Escrow Account. The Indemnifying Party will have Within ten (10) days after the right, exercisable by written notice determination of the amount of any Agreed Claims with respect to which any Parent Indemnitee is the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable Parties shall deliver a joint written instruction to the Indemnified Party; provided, however, that an Indemnified Party will have Escrow Agent directing the right Escrow Agent to retain its own counsel, at its own expense, except that disburse the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation amount of such Indemnified Party by Agreed Claim from funds on deposit in the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Indemnity Escrow Account.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that If any failure matter or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received thing shall be claimed against any Person in respect of any Losseswhich an Indemnity is provided hereunder, such Person (the. "Indemnified Party") will notify in writing the person who provided the Indemnity (the "Indemnifying Party") of the nature of the claim. The Indemnifying Party will have shall be entitled (but not required) to assume the rightdefence of any suit brought to enforce such claim if, exercisable but only if, the Indemnified Party shall be fully indemnified by written notice the Indemnifying Party for the full amount of the claim, and if the defence shall be through legal counsel acceptable to the Indemnified Party, to assume acting reasonably. In all cases, the Indemnified Party and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will shall each have the right to retain its own counsel, at its own expense, except additional counsel to act on its behalf. The Indemnifying Party shall not settle or (without giving the Indemnified Party a reasonable opportunity to take carnage thereof) abandon any such claim which it has elected to defend unless it has first unconditionally acknowledged to the Indemnified Party that the fees and expenses claim is within the scope of the Indemnity being sought pursuant to this Article 7; and further provided that the party having carnage of the defence of any claim shall keep the other reasonably informed as to the progress thereof. The Indemnified Party shall have the right but not the obligation, to assert any and -all counterclaims it may have. The Indemnified Party shall at all times cooperate in all reasonable ways with, make all its relevant files and records and those of BCR available for inspection and copying by, and make its employees and those of BCR reasonably available or otherwise render reasonable assistance to, the Indemnifying Party’s counsel will be paid
(i) in its defence of 'any claim for which indemnity is sought hereunder and
(ii) in any action brought by the Indemnifying Party if representation to assert any' related claim, counterclaim or right of such Indemnified Party subrogation under Article 7.5 hereof. No claim may be settled by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of of-the Indemnifying Party, and the Indemnifying Party will such consent not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)withheld.
Appears in 1 contract
Indemnification Procedure. Each (a) A party agreeing to indemnify against any matter pursuant to this Agreement is referred to herein as the “Indemnifying Party, if seeking indemnification under this Article 15 (Indemnification) (” and the other party claiming indemnity is referred to as the “Indemnified Party.”
(b) Whenever any claim or threatened claim shall arise for which indemnification may be sought hereunder, the Indemnified Party shall notify the Indemnifying Party in writing promptly after the Indemnified Party has actual knowledge of such claims and the acts constituting the basis for such claim or threatened claim (the “Notice of Claim”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will the omission so to notify the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligationfrom any Liability which the Indemnifying Party may have to the Indemnified Party otherwise than under this Section 11, or from any Liability under this Section 11 except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish and solely to the other extent that the Indemnifying Party copies is prejudiced as a result of the failure to give such notice promptly. The Notice of Claim shall specify all papers material facts known to the Indemnified Party giving rise to such indemnification claim and official documents received in respect the amount or an estimate of the amount of the Liability arising therefrom.
(c) If the facts giving rise to any such indemnification shall involve any actual, threatened or possible claim or demand by any Person against the Indemnified Party, the Indemnifying Party shall be entitled to assume control of the defense of any Losses. The Action (without prejudice to the right of the Indemnified Party to participate at its expense through counsel of its choice) to contest, defend, compromise or settle (without imposing any Liability or obligation on the Indemnified Party) such claim at the Indemnifying Party’s expense and through counsel of its choice, so long as the Indemnifying Party will have the right, exercisable by gives written notice to the Indemnified Party, to assume and control the defense Party within thirty (30) days after receipt of the indemnification claim at Notice of Claim of its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation intention to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Partyshall provide such cooperation and such access to its books, records and properties as the Indemnifying Party will not settle shall reasonably request with respect to such matter and the parties hereto agree to cooperate with each other in order to ensure the proper and adequate hereof.
(d) No tax effect of any claim (such as that a loss or compromise the damage for which indemnification claim is sought may be tax deductible or Seller’s payment to Buyer therefor may be income to Buyer or vice versa) shall be given consideration in any manner that would have an adverse effect on determining the Indemnified Party’s interests (including loss or damage in respect of which any rights claim for indemnification may be made under this Agreement or Agreement.
(e) In the scope or enforceability event of any Patents, Confidential Information, or other rights licensed payment by an Indemnifying Party to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent Indemnified Party as contemplated in this Section 11 the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party, Party as to any events or circumstances in respect of which consent, in each case (by the Indemnified Party may have any right or claim against any third party relating to such event giving rise to the claim for which the Indemnifying Party or shall have made payment to the Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably shall cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding in any material developments. The Indemnifying Party will not be liable for reasonable manner in prosecuting any settlement such subrogated right or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)claim.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking A party claiming indemnification under this Article 15 Section 11 (Indemnification) (the an “Indemnified Party”), will give [**] ) shall provide prompt written notice of the claim to the other Party party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect ) of any Losses. The Indemnifying Party will have the rightand all notices, exercisable by written notice to the Indemnified Partyclaims, to assume demands, pleadings, and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; providedother facts or circumstances that may, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of in the Indemnified Party’s counsel will reasonable judgment, be paid by likely to result in a claim for indemnification. The Indemnified Party’s failure to provide such prompt written notice shall reduce the indemnification obligation of the Indemnifying Party if representation of to the extent that such Indemnified Party by the counsel retained by failure resulted in demonstrable prejudice to the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do soParty. The Indemnified Party will not settle shall promptly tender defense of any *** Confidential treatment requested 6 litigation or compromise the indemnification claim without the prior written consent of other formal dispute to the Indemnifying Party, and the Indemnifying Party will shall select counsel of its choice, reasonably acceptable to the Indemnified Party for such litigation or dispute. The Indemnified Party shall cooperate completely with the Indemnifying Party, including without limitation providing timely responses to all discovery requests and providing expert and factual witnesses as necessary or desirable. The Indemnifying Party may not settle or compromise such action without first obtaining the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), consent will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with , except for settlements solely covering monetary matters for which the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality)acknowledges responsibility for payment. The Indemnifying Party will provide periodic updates to shall permit the Indemnified Party (at the Indemnified Party’s sole cost and its counsel, if applicableexpense) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any to participate in such settlement or other disposition of Losses defense through counsel chosen by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Party.
Appears in 1 contract
Sources: Manufacturing and Supply Agreement (Helix Biomedix Inc)
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written Promptly after receipt by any indemnified party of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying party pursuant to this Section 6.1, such indemnified party shall notify the indemnifying party in writing of such claim or of the commencement of such action, and, subject to the other Party (provisions hereinafter stated, in case any such action shall have been brought against an indemnified party and the “Indemnifying Party”)indemnifying party shall have been notified thereof, the indemnifying party shall be entitled to participate therein, and, to the extent that it shall wish, to assume the defense of such action, with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof; provided, however, that any failure if there exists or delay shall exist a conflict of -------- ------- interest that would make it inappropriate in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense reasonable judgment of the indemnification claim at its own expense with indemnified party for the same counsel selected by to represent both the Indemnifying Party indemnified party and reasonably acceptable to such indemnifying party or any affiliate or associate thereof, the Indemnified Party; provided, however, that an Indemnified Party will have the right indemnified party shall be entitled to retain its own counsel, counsel at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation expense of such Indemnified Party by indemnifying party. Failure of any indemnifying party to give notice as provided herein shall not relieve the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other indemnifying party represented by such counsel of its obligations under this Section 6.1(e). No indemnifying party, in such proceedings. If the Indemnifying Party does not assume the defense of any such claim or action, except with the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Partyeach indemnified party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability shall consent to entry of any Patents, Confidential Information, judgment or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding enter into any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)settlement.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 If any Proceeding shall be brought or asserted against any person entitled to indemnity hereunder (Indemnification) (the an “Indemnified Party”), will give [**] written notice of such Indemnified Party shall promptly notify the claim to the other Party person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all reasonable fees and expenses incurred in connection with defense thereof; provided, however, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Warrant, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest exists if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that shall not be liable for the fees and expenses of the more than one separate firm of attorneys at any time for all Indemnified Party’s counsel will be paid by the Parties. The Indemnifying Party if representation shall not be liable for any settlement of any such Indemnified Party by the counsel retained by the Proceeding effected without its written consent, which consent shall not be unreasonably withheld, delayed or conditioned. No Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which consentany Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and such settlement does not require the Indemnified Party to pay any amount or take any action in connection therewith All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding) shall be paid to the Indemnified Party, as incurred, within twenty days of written notice thereof to the Indemnifying Party; provided, however, that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally judicially determined to not be entitled to indemnification hereunder. If a claim for indemnification hereunder) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in each case (lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the case may be), will extent such party would have been indemnified for such fees or expenses if the indemnification provided for herein was available to such party in accordance with its terms. The parties hereto agree that it would not be unreasonably withheld just and equitable if contribution pursuant hereto were determined by pro rata allocation or delayedby any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The Indemnified Party will reasonably cooperate with No person guilty of fraudulent misrepresentation (within the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control meaning of Section 11(f) of the Indemnified Party, which information will Securities Act) shall be subject entitled to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense contribution from any person who was not guilty of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)fraudulent misrepresentation.
Appears in 1 contract
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 6.3 (the “Indemnified Party”), will ) shall give [**] written notice of the claim to the other Party party(ies) from whom indemnification is sought (the “Indemnifying Party”)) prompt written notice (in the case of indemnification under this Section 6.3, such notice shall be given to the Stockholders’ Representative) of any third-party claim which may give rise to any indemnity obligation under this Section 6.3, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within 10 days of receipt of the Indemnified Party’s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its Party’s indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually materially prejudiced by such failure or delayfailure. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to If the Indemnified Party, Party desires to assume and control the participate in any such defense of the indemnification claim at its own expense with counsel selected assumed by the Indemnifying Party Party, it may do so at its sole cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an the Indemnified Party will have be entitled to participate in any such defense with separate counsel at the right expense of the Indemnifying Party if, in the reasonable judgment of counsel to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume the any such defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)or fails to diligently pursue any such defense, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise be liable, subject to the indemnification claim limitations in any manner that would have an adverse effect on this Section 6.3, for all reasonable costs and expenses incurred by the Indemnified Party’s interests (Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including any rights under this Agreement or reasonable fees and disbursements of counsel. The parties hereto agree to cooperate with each other in connection with the scope or enforceability defense of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, which consentsettle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in each case (by the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayedParty and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Partynot, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party, which will not be unreasonably withheld, delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party pursuant is not disputed by the Indemnifying Party within 20 days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 6.3(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (any of the foregoing, a “Resolution”), then (A) in the case of indemnification under Section 6.3(b), Parent will pay to this Section 15.3 (Indemnification Procedure)the Paying Agent for further distribution to the Equityholder Indemnified Party promptly following such Resolution an amount equal to the Losses of such Equityholder Indemnified Party as set forth in such Resolution.
Appears in 1 contract
Indemnification Procedure. Each Party(a) If the Buyer Indemnified Parties or the Seller Indemnified Parties intend to seek indemnification pursuant to Section 8.2 or Section 8.3 hereof, if seeking indemnification under this Article 15 (Indemnification) as applicable (the “"Indemnified Party”"), such Indemnified Party shall promptly notify the other part(ies) required to provide indemnification pursuant to such Section 8.2 or Section 8.3 hereof, as applicable (the "Indemnifying Party"), in writing of such claim. The Indemnified Party will give [**] written provide the Indemnifying Party with prompt notice of the any third party claim in respect of which indemnification is sought. The failure to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing provide either such notice will not relieve the Indemnifying Party of its indemnification obligation, affect any rights hereunder except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have is materially prejudiced thereby.
(b) If such claim involves a claim by a third party against an Indemnified Party, the rightIndemnifying Party, exercisable by written may, within thirty (30) calendar days after receipt of such notice and upon notice to the Indemnified Party, to assume and control the defense assume, through counsel of the indemnification claim at its own expense with counsel selected by the Indemnifying Party choosing and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except the settlement or defense thereof, and the Indemnified Parties shall reasonably cooperate in connection therewith; provided that the Indemnified Parties may participate at its own cost in such settlement or defense through counsel chosen by it; provided further that if the Indemnified Party reasonably determines that representation by the indemnifying Party's counsel of the indemnifying Party and the Indemnified Parties may present such counsel with a conflict of interests, then the Indemnifying Party shall pay the reasonable fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings's counsel. If the Indemnifying Party does not assume the defense of the indemnification claim as described Notwithstanding anything in this Section 15.3 (Indemnification Procedure)9.4 to the contrary, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)may, without the prior written consent of the Indemnified Party, which consentsettle or compromise any action or consent to the entry of any judgment, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will such consent not to be unreasonably withheld or delayed, unless the Indemnified Party obtains a complete release and is not required to pay any sum or make any admission whatsoever or take any other action in connection with such settlement other than delivering a customary release and discontinuance in which case no such consent shall be required, and such settlement, compromise or, consent will have no adverse, binding effect on the Indemnified Party or its Affiliates. The Indemnified Party will reasonably cooperate with shall not pay or settle any such claim without the Indemnifying Party's consent, such consent not to be unreasonably withheld. If the Indemnifying Party is not contesting such claim in good faith, then the Indemnified Party may conduct and control, through counsel of its own choosing and at the expense of the Indemnifying Party’s expense , the settlement or defense thereof, and will make available to the Indemnifying Party all pertinent information under the control shall cooperate with it in connection therewith. The failure of the Indemnified PartyParty to participate in, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its conduct or control such defense of the action with immediate notice regarding any material developments. The Indemnifying Party will shall not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of relieve the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)of any obligation it may have hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aveta Inc)
Indemnification Procedure. Each The parties’ obligation to indemnify is subject to the conditions that the party with the obligation to indemnify (“Indemnifying Party, if seeking indemnification under this Article 15 ”) is given prompt notice of any such claims and is given primary control of and all reasonably requested assistance (Indemnificationat the other party’s cost) for the defense of such claims (with counsel reasonably satisfactory to the party being indemnified (“Indemnified Party”), will give [**] written notice of provided that the claim Indemnified Party shall under no circumstances be required to the other Party (the “Indemnifying Party”); providedadmit liability, however, and provided further that any failure or delay in providing such notice will notification shall not relieve the Indemnifying Party of its indemnification obligation, obligations hereunder except to the extent it is actually prejudiced by that the delay materially impairs its ability to indemnify. Without limiting the foregoing, the Indemnified Party may participate in the defense at its own expense and with its own counsel; provided that if the Indemnified Party reasonably concludes that the Indemnifying Party has conflicting interests or different defenses available with respect to such failure or delay. Each Party will promptly furnish claim, the reasonable fees and expenses of one counsel to the other Indemnified Party copies of all papers and official documents received in respect of any Lossesshall be borne by the Indemnifying Party. The Indemnifying Party will have shall not enter into or acquiesce to any settlement containing any admission of or stipulation to any guilt, fault, liability, or wrongdoing on the right, exercisable by written notice to part of the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to or which would otherwise adversely affect the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of without the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will shall not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentialitywithheld). The Indemnifying Party will provide periodic updates to shall keep the Indemnified Party (and its counsel, if applicable) regarding its defense advised of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent status of the Indemnifying Party pursuant claims and the defense thereof, as is reasonable under the circumstances and to this Section 15.3 (Indemnification Procedure)the extent it does not interfere or jeopardize the underlying defense.
Appears in 1 contract
Sources: Software Services Agreement
Indemnification Procedure. Each Party(a) Upon obtaining knowledge thereof, if seeking indemnification under this Article 15 (Indemnification) the party to be indemnified hereunder (the “Indemnified Party”), will give [**] written notice of ) shall promptly notify the claim to the other Party indemnifying party hereunder (the “Indemnifying Party”) in writing of any claim which the Indemnified Party has determined has given or could give rise to a claim for Losses hereunder (such written notice referred to as the “Notice of Claim”); provided, howeverthat, that any the failure or delay in providing such notice will not by the Indemnified Party to provide the Notice of Claim with reasonable promptness shall only relieve the Indemnifying Party of its indemnification obligation, except obligations hereunder if and to the extent it is that the Indemnifying Party’s ability to defend has been actually and materially prejudiced by such failure or delayfailure. Each Party will promptly furnish The Notice of Claim shall specify, in all reasonable detail, the nature and estimated amount of any such Losses giving rise to a right of indemnification.
(b) With respect to any matter set forth in a Notice of Claim relating to a third party claim, subject to the other Party copies of all papers and official documents received in respect of any Losses. The following sentence, the Indemnifying Party will have may compromise or defend, at the rightIndemnifying Party’s own expense, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to Party’s own counsel, any such matter involving the asserted liability of the Indemnified Party; provided, however, that an Indemnified no compromise or settlement thereof may be effected by the Indemnifying Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of without the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 consent (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim which shall in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will event not be unreasonably withheld or delayed. The ) unless (i) there is no finding or admission of any violation of Law by the Indemnified Party will reasonably cooperate with or any violation of the rights of any Person by the Indemnified Party, (ii) there is no effect on any other claims that may be made against the Indemnified Party, and (iii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. Notwithstanding the foregoing, if the Indemnifying Party elects not to compromise or defend such matter, then the Indemnified Party, at its expense and its own counsel, may defend such matter (without compromising its rights to indemnification pursuant to Article V or this Article VI). The Indemnifying Party shall have no liability with respect to any such matter, the defense of which is compromised without the Indemnifying Party’s expense consent (unless such consent was unreasonably withheld or delayed). In any event, the Indemnified Party, the Indemnifying Party and will the Indemnifying Party’s counsel (and, if applicable, the Indemnified Party’s counsel) shall cooperate in good faith in the compromise of, or the defense against, any such asserted liability. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall be entitled, at the Indemnified Party’s expense, to participate in such defense and shall make available to the Indemnifying Party any books, records, or other documents within its control that are reasonably necessary or appropriate for such defense. Without limiting the foregoing, the Sellers covenant and agree to cooperate with Buyer in good faith, and to provide all pertinent information under assistance reasonably requested by Buyer, in connection with the control defense of any claim covered by any of the Indemnified Party, which information will be subject to special indemnification provisions set forth in the Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)V above.
Appears in 1 contract
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 6.1 (the “Indemnified Party”), will ) shall give [**] written notice of the claim to the other Party party(ies) from whom indemnification is sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 6.1(a), such notice shall be given to each of the Remaining Members) of any third-party claim which may give rise to any indemnity obligation under this Section 6.1, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within ten (10) days of receipt of the Indemnified Party’s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its Party’s indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually materially prejudiced by such failure or delayfailure. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to If the Indemnified Party, Party desires to assume and control the participate in any such defense of the indemnification claim at its own expense with counsel selected assumed by the Indemnifying Party Party, it may do so at its sole cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an the Indemnified Party will have be entitled to participate in any such defense with separate counsel at the right expense of the Indemnifying Party if, in the reasonable judgment of counsel to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume the any such defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)or fails to diligently pursue any such defense, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on be liable for all reasonable costs and expenses incurred by the Indemnified Party’s interests (Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including any rights under this Agreement or reasonable fees and disbursements of counsel. The parties hereto agree to cooperate with each other in connection with the scope or enforceability defense of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, which consentsettle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in each case (by the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayedParty and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Partynot, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party, which will not be unreasonably withheld, delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party pursuant is not disputed by the Indemnifying Party within thirty (30) days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 6.1(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (any of the foregoing, a “Resolution”), then (A) in the case of indemnification under Section 6.1(b), the Buyer will pay to this the Member Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such Member Indemnified Party as set forth in such Resolution, or (B) in the case of indemnification under Section 15.3 (Indemnification Procedure6.1(a), the Buyer will deliver evidence of such Resolution to each Remaining Member, whereupon the Remaining Members, jointly or severally, will deliver to the Buyer Indemnified Party an amount equal to the Losses of such Buyer Indemnified Party as set forth in such Resolution. At the election of the Remaining Members, the amount to be delivered to the Buyer Indemnified Party in accordance with the immediately preceding sentence may be deducted from the Earn-Out Payments, if any. Except as otherwise specifically provided in Section 6.1(d), the depletion of the Earn-Out Payments, if any, will not serve as a bar to recovery by the Buyer Indemnified Parties from the Remaining Members of any indemnifiable Losses, and the Buyer Indemnified Parties will be entitled to look directly to the Remaining Members, jointly and severally, for any Losses in excess of the such amounts, and such Losses will be the obligations of the Remaining Members, jointly and severally, as provided in Section 6.1(a) and will be paid to the applicable Buyer Indemnified Party promptly following such Resolution.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (AMERI Holdings, Inc.)
Indemnification Procedure. Each PartyThe foregoing indemnification by * or Client shall be conditioned, if seeking and to the extent Damages are based on or related to a third party claim, upon a Party who intends to claim indemnification under this Article 15 (Indemnification) Sections 13.1 and 13.2 (the “Indemnified Party”), will give [**] ) (i) providing written notice of the claim to the other Party (the “Indemnifying Party”); provided) within twenty (20) calendar days after the Indemnified Party have been given written notice of such third party claim, however, provided that any failure absence or delay in providing of such prior written notice will not relieve the Indemnifying Party of its indemnification obligation, obligation to indemnify except to the extent it is actually prejudiced such absence or delay materially prejudices the Indemnifying Party’s ability to defend the third party claim; (ii) permitting the Indemnifying Party, upon timely notice by such failure or delay. Each Party will promptly furnish the Indemnified Party, the opportunity to assume full responsibility (at the other Party copies of all papers Indemnifying Party’s cost and official documents received in respect expense) for the investigation and defense of any Losses. The Indemnifying Party will have the right, exercisable by written notice such claim with counsel reasonably satisfactory to the Indemnified Party, provided, however, the Indemnifying Party shall keep the Indemnified Party informed as to assume and control the progress of the defense of any claim and that the indemnification claim at its own expense with counsel selected Indemnified Party shall cooperate in such defense and shall make available all records, materials and witness reasonably requested by the Indemnifying Party in connection therewith; and reasonably acceptable (iii) not settling or compromising any such claim without the Indemnifying Party’s prior written consent, with such consent not to be unreasonably denied, withheld or conditioned. Furthermore, the Indemnifying Party shall not settle or compromise any such claim without the Indemnified Party’s prior written consent; provided, however, that an Indemnified Party will have no such consent shall be required if such settlement or compromise involves only the right to retain its own counselpayment of money, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense require a finding or admission of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle fault or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect guild on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent party of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control provides for a general release of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to * Confidential material redacted and filed separately with the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Commission.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking (a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Article 15 (Indemnification) Agreement, such Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses shall notify the indemnifying party under Section 8 (the “Indemnified "Indemnifying Party”)") in writing of its claim for indemnification for such Losses, will give [**] written notice specifying in reasonable detail the nature of such Losses and the amount of the claim Loss estimated to the other Party (the “Indemnifying Party”)accrue therefrom; provided, however, that any failure or delay in providing to give such notice notification will not relieve affect the Indemnifying Party of its indemnification obligationprovided hereunder, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the rightIndemnified Party will deliver to the Indemnifying Party, exercisable by written notice to within a reasonable period of time after the Indemnified Party's receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses.
(b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party (a "Third Party Claim"), the Indemnifying Party will be entitled to assume and control the defense of the indemnification claim such Third Party Claim at its own expense with counsel selected by the Indemnifying Party, unless such Third Party and reasonably acceptable Claim seeks an injunction or other equitable relief against the Indemnified Party. Except as provided below, should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party; providedParty for any legal expenses subsequently incurred by the Indemnified Part) in connection with the defense thereof. If the Indemnifying Party assumes such defense, however, that an the Indemnified Party will have the right to retain its own participate in the defense thereof and to employ counsel, at its own expenseexpense (which expense shall not constitute a Loss), except separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party’s counsel will be paid by Party for any period during which the Indemnifying Party if representation of such Indemnified Party by has not assumed the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between defense thereof (other than during any period in which the Indemnified Party and any other party represented by such counsel in such proceedingswill have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party does not assume chooses to defend or prosecute a Third Party Claim, all of the Parties hereto will reasonably cooperate in the defense of or prosecution thereof. Such cooperation will include the indemnification claim as described in this Section 15.3 retention and (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without obtain the prior written consent of the Indemnified PartyParty (not to be unreasonably withheld) before entering into any settlement, which consentcompromise or discharge of such Third Party Claim if (i) such settlement, in each case compromise or discharge does not relate solely to monetary damages, (by ii) such settlement, compromise or discharge does not expressly unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim and (iii) the Indemnifying Party is not directly paying the full amount of the Losses in connection with such Third Party Claim. Whether or Indemnified Partynot the Indemnifying Party will have assumed the defense of a Third Party Claim, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (not to be unreasonably withheld).
(c) Each Indemnified Party shall take, and shall cause its Affiliates to take. all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would reasonably cooperate be expected to, or such Indemnified Party believes does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss (which costs shall be deemed to be Losses); provided, that such failure to use such efforts in accordance with the foregoing shall not relieve the Indemnifying Party at of its indemnification obligations under Section 9 except and only to the Indemnifying Party’s expense and will make available to extent that the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)prejudiced thereby.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will shall have the right, exercisable at its sole discretion and expense, to be represented by written notice counsel of its choice, reasonably satisfactory to the Indemnified Party, and to assume and control the defense of the any Proceeding that relates to any Losses for which indemnification claim at its own expense with counsel selected by may be sought hereunder; provided that (i) the Indemnifying Party and reasonably acceptable may only assume control of such defense if (A) it acknowledges in writing to the Indemnified Party; providedParty that any damages, howeverfines, costs or other liabilities that an may be assessed against the Indemnified Party will in connection with such Proceeding constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article VII, (B) the ad damnum is less than or equal to the amount of Losses for which the Indemnifying Party is liable under this Article VII and the unclaimed balance of the Escrow Fund, and (C) an adverse resolution of the Proceeding would not have a material adverse effect on the right to retain its own counsel, at its own expense, except that the fees and expenses goodwill or reputation of the Indemnified Party’s counsel will be paid by Party or the Indemnifying Party if representation business, operations or future conduct of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel (ii) the Indemnifying Party may not assume control of the defense of an Proceeding involving criminal liability or in such proceedingswhich equitable relief is sought against the Indemnified Party. If the Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)a Proceeding, then the Indemnified Party may defend the indemnification claim but will have no obligation to do soshall control such defense. The Non-controlling Party may participate in such defense at its own expense. The Controlling Party shall keep the Non-controlling Party advised of the status of such Proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Proceeding. The fees and expenses of counsel to the Indemnified Party will not settle with respect to an Proceeding shall be considered Losses for purposes of this Agreement if (I) the Indemnified Party controls the defense of such Proceeding pursuant to the terms of this Section 7.4(g) or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and (II) the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on assumes control of such defense and the Indemnified Party’s Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests (including or different defenses available with respect to such Proceeding. The Indemnifying Party shall not agree to any rights under this Agreement settlement of, or the scope or enforceability entry of any Patentsjudgment arising from, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), any Proceeding without the prior written consent of the Indemnified Party, which consentshall not be unreasonably withheld, in each case (by conditioned or delayed; provided that the consent of the Indemnified Party shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or Indemnified Party, as the case may be), will not be unreasonably withheld judgment and such settlement or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party. Except as provided in Section 7.4(h) below, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will shall not be liable for agree to any settlement of, or other disposition the entry of Losses by the Indemnified Party if any judgment arising from, any such settlement is reached Proceeding without the prior written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Party, which shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay8.6.1. Each Party will promptly furnish to the other Party copies of all papers and official documents received in In respect of any Losses. The Indemnifying Party will have the rightClaim under this Clause, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the / Purchaser Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with ) shall intimate the Indemnifying Party at the Indemnifying Party’s expense and will make available to the / Seller Indemnifying Party all pertinent information under the control of the Indemnified Partyamount of the Loss and the particulars of such Loss, which information will be subject to Article 14 within 30 (Confidentialitythirty) days of incurring such Loss (“Claim Notice”). The Indemnifying Party will provide periodic updates / Seller Indemnifying Party (as the case may be) shall make indemnity payments to the Indemnified Party Parties / Purchaser Indemnified Parties within 60 (and its counsel, if applicablesixty) regarding its defense days of receipt of the action with immediate notice regarding Claim Notice (which period shall be extended for any material developmentstime period that may be required to settle disputes as per Clause 12) without protest or demur.
8.6.2. The Indemnifying Party will not / Seller Indemnifying Party (as the case may be) shall take all necessary steps, including passing of any resolutions (where applicable), that may be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of required to ensure that the Indemnifying Party pursuant / Seller Indemnifying Party (as the case may be) fulfils its respective indemnification obligations hereunder.
8.6.3. On becoming aware of the existence of any circumstance or occurrence of any event that may give rise to a Claim under this Section 15.3 Clause 8, the Purchaser may or may not intimate the Founders of such circumstance or occurrence, within 30 (Indemnification Procedure)thirty) days of such circumstance or occurrence becoming known to it. It is clarified that any failure by the Purchaser to intimate or notify the Founders of such circumstance or occurrence of any event would not prejudice the Purchaser’s right to be indemnified under this Clause 8, or the Founders’ obligation to indemnify the Purchaser under this Clause 8, in any manner.
Appears in 1 contract
Sources: Share Purchase Agreement
Indemnification Procedure. Each Party, if An Indemnified Party shall promptly notify the Party from whom it is seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”) upon becoming aware of an Indemnified Claim with respect to which the Indemnifying Party is obligated to provide indemnification under this Section 11. The Indemnifying Party shall promptly assume control of the defense and investigation of the Indemnified Claim, with counsel of its own choosing, and the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection therewith, in each case at the Indemnifying Party’s sole cost and expense. The Indemnified Party may participate in the defense of such Indemnified Claim, with counsel of its own choosing and at its own cost and expense. The Indemnifying Party shall not settle any Indemnified Claim on any terms or in any manner that adversely affects the rights of any Indemnified Party without the Indemnified Party’s prior written consent (which consent may not be unreasonably withheld, conditioned, or delayed); provided. If the Indemnifying Party fails or refuses to assume control of the defense of an Indemnified Claim, howeverthe Indemnified Party may, that but is not obligated to, defend against such Indemnified Claim, including settling such Indemnified Claim after giving notice to the Indemnifying Party, in each case in such manner and on such terms as the Indemnified Party may deem appropriate. The Indemnified Party’s failure to perform any failure or delay in providing such notice obligation under this Section 11.3 will not relieve the Indemnifying Party of its indemnification obligationobligations under this Section 11, including with respect to any Losses, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by that the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, can demonstrate that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim it has been materially prejudiced as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)a result thereof.
Appears in 1 contract
Sources: Commercial and Development Collaboration Agreement (Agendia N.V.)
Indemnification Procedure. Each (i) A party entitled to indemnification pursuant to this Article IX (an "Indemnified Party, if seeking ") shall provide written notice to each party obligated to provide indemnification pursuant to this Article IX (an "Indemnifying Party") of any claim of such Indemnified Party for indemnification under this Article 15 Agreement within ten (Indemnification10) days after the date on which such Indemnified Party has actual knowledge of the existence of such claim. Such notice shall specify the nature of such claim in reasonable detail and the Indemnifying Parties shall be given reasonable access to any documents or properties within the control of the Indemnified Parties as may be useful or necessary in the investigation of the basis for such claim. The failure to timely notify the Indemnifying Parties shall not constitute a waiver of such claim unless the failure to so notify materially prejudices the Indemnifying Party's ability to defend such claim.
(ii) In the “event any Indemnified Party”)Party seeks indemnification hereunder based upon a claim asserted by a third party, will give [**] the Indemnifying Parties shall have the right (without prejudice to the right of any Indemnified Party to participate at its expense through counsel of its own choosing) to defend or prosecute such claim at its expense and through counsel of its own choosing if it gives written notice of its intention to do so no later than twenty (20) days following notice thereof by an Indemnified Party or such shorter time period as required so that the claim interests of the Indemnified Party would not be materially prejudiced as a result of its failure to the other Party (the “Indemnifying Party”)have received such notice; provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligationthat, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to if the Indemnified PartyParty shall have obtained an opinion of counsel that separate counsel is required because a conflict of interest would otherwise exist, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will shall have the right to retain select separate counsel to participate in the defense of such action on its own counselbehalf, at its own expense, except that the fees and expenses expense of the Indemnified Indemnifying Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the so choose to defend or prosecute any such claim asserted by a third party for which any Indemnified Party would be entitled to indemnification claim as described in this Section 15.3 (Indemnification Procedure)hereunder, then the Indemnified Party may defend the indemnification claim but will have no obligation shall be entitled to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and recover from the Indemnifying Party will not settle or compromise on a monthly basis all of the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability reasonable attorney's fees and other reasonable costs and expenses of litigation of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without nature whatsoever incurred in the prior written consent defense of such claim. Notwithstanding the assumption of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses claim by the Indemnified Party if such settlement is reached without the written consent of the an Indemnifying Party pursuant to this Section 15.3 paragraph, the Indemnified Party shall have the right to approve the terms of any settlement of a claim (Indemnification Procedurewhich approval shall not be unreasonably delayed or withheld), other than a settlement involving solely the payment of money damages by the Indemnifying Party and resulting in the complete release of the Indemnified Party.
(iii) The Indemnifying Party and the Indemnified Party shall cooperate in furnishing evidence and testimony and in any other manner which the other may reasonably request pursuant to this Article IX, and shall in all other respects have an obligation of good faith dealing, one to the other, so as not to unreasonably expose the other to undue risk of loss.
Appears in 1 contract
Sources: Merger Agreement (7th Level Inc)
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnificationa) In order for a Buyer Indemnified Party or Seller Indemnified Party (the “Indemnified Party”), will as the case may be, to be entitled to any indemnification provided for under this Agreement as a result the assertion of any claim, or the commencement of any suit, action or proceeding, against the Indemnified Party by any Person not a party of this Agreement (a “Third-Party Claim”), the Indemnified Party shall give [**] written notice of the claim (a “Claim Notice”) to the other Party party against whom indemnification is sought (the “Indemnifying Party”)) as promptly as is reasonably practicable after receipt by such Indemnified Party of notice of any Third-Party Claim, and shall provide any other information known or reasonably available to such Indemnified Party with respect thereto as the Indemnifying Party may reasonably request; provided, however, that any the failure or delay in providing of the Indemnified Party to give such notice will shall not relieve the Indemnifying Party of its indemnification obligation, obligations under this ARTICLE IX except to the extent it is actually (if any) that the Indemnifying Party shall have been prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. thereby.
(b) The Indemnifying Party will shall have the right, exercisable by upon written notice to the Indemnified PartyParty within fifteen (15) Business Days of receipt of a Claim Notice from the Indemnified Party in respect of such Third-Party Claim, to assume and control the defense thereof at the expense of the indemnification claim at its own expense Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably acceptable satisfactory to the Indemnified Party; provided. Notwithstanding the foregoing, howeverthe Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim for equitable or injunctive relief or any claim that would impose criminal Liability or Damages, that an and the Indemnified Party will shall have the right to retain its own counseldefend, at its own expensethe expense of the Indemnifying Party, except that any such Third-Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party’s counsel will be paid by Party for any period during which the Indemnifying Party if representation of such Indemnified Party by has failed to or is not entitled to assume the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedingsdefense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third-Party Claim within the indemnification claim as described time period and otherwise in accordance with the first sentence of this Section 15.3 (Indemnification Procedure9.3(b), then the Indemnified Party may defend shall have the indemnification claim but will have no obligation sole right to do soassume the defense of and to settle such Third-Party Claim. The If the Indemnifying Party assumes the defense of such Third-Party Claim, the Indemnified Party will not settle shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or compromise (ii) the indemnification claim without named parties to the prior written consent of Third-Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party will not settle or compromise of both the indemnification claim Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in any manner that would have an adverse effect on such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s interests (including any rights possession or under this Agreement or the scope or enforceability Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any PatentsThird-Party Claim, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third-Party Claim if such settlement, compromise or judgment (A) involves a finding or admission of wrongdoing, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third-Party Claim or (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money Damages for which consentthe Indemnified Party will be indemnified hereunder.
(c) The indemnification required hereunder shall be made by prompt payment by the Escrow Agent (to the extent of any amounts then held in the Indemnity Escrow Fund, if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Indemnity Escrow Fund, if applicable), subject in each case (to the limitations set forth in Section 9.2(c) and Section 9.4, of the amount of actual Damages in connection therewith, as and when bills are received by the Indemnifying Party or Damages incurred have been notified to the Indemnifying Party, together with interest on any amount not repaid as necessary to the Indemnified Party by the Escrow Agent or the Indemnifying Party, as applicable, within five (5) Business Days after receipt of notice of such Damages, from the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with date such Damages have been notified to the Indemnifying Party at the Indemnifying Party’s expense and will make available to the rate of interest described in Section 2.5(h).
(d) The Indemnifying Party all pertinent information under the control of shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) Notwithstanding the provisions of Section 10.9, which information will be subject to Article 14 (Confidentiality). The each Indemnifying Party will provide periodic updates hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third-Party Claim is brought against any Indemnified Party (for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The agrees that process may be served on each Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if with respect to such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)claim anywhere.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Brown Forman Corp)
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 7.3 (the “Indemnified Party”), will ) shall give [**] written notice of the claim to the other Party party(ies) from whom indemnification is sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 7.3(a), such notice shall be given to the Shareholders’ Agent) of any third-party claim which may give rise to any indemnity obligation under this Section 7.3, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within 10 days of receipt of the Indemnified Party’s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its Party’s indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually materially prejudiced by such failure or delayfailure. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to If the Indemnified Party, Party desires to assume and control the participate in any such defense of the indemnification claim at its own expense with counsel selected assumed by the Indemnifying Party Party, it may do so at its sole cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an the Indemnified Party will have be entitled to participate in any such defense with separate counsel at the right expense of the Indemnifying Party if, in the reasonable judgment of counsel to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume the any such defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)or fails to diligently pursue any such defense, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on be liable for all reasonable costs and expenses incurred by the Indemnified Party’s interests (Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including any rights under this Agreement or reasonable fees and disbursements of counsel. The parties hereto agree to cooperate with each other in connection with the scope or enforceability defense of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, which consentsettle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in each case (by the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayedParty and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Partynot, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party, which will not be unreasonably withheld, delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party pursuant is not disputed by the Indemnifying Party within 20 days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 7.3(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (any of the foregoing, a “Resolution”), then (A) in the case of indemnification under Section 7.3(b), Parent will pay to this the Shareholder Indemnified Party promptly following such Resolution an amount equal to the Losses of such Shareholder Indemnified Party as set forth in such Resolution, or (B) in the case of indemnification under Section 15.3 (Indemnification Procedure7.3(a), Parent will deliver evidence of such Resolution to the Escrow Agent and the Shareholders’ Agent, whereupon the Escrow Agent will deliver to the Parent Indemnified Party an amount from the Escrow Amount equal to the Losses of such Parent Indemnified Party as set forth in such Resolution. The amount of the Escrow Amount delivered to the Parent Indemnified Party in accordance with the immediately preceding sentence and the Escrow Agreement will reduce the Closing Cash Payment on a pro rata basis among the Shareholders determined in accordance with the allocation of the Closing Cash Payment set forth in Section 2.1(b) of the Company Disclosure Schedule. Except as otherwise specifically provided in Section 7.3(d), the termination of the Escrow Agreement or the depletion of the Escrow Amount will not serve as a bar to recovery by the Parent Indemnified Parties from the Shareholders of any indemnifiable Losses, and the Parent Indemnified Parties will be entitled to look directly to the Shareholders for any Losses in excess of the Escrow Amount held by the Escrow Agent, and such Losses will be the obligations of the Shareholders as provided in Section 7.3(a) and will be paid to the applicable Parent Indemnified Party promptly following such Resolution.
Appears in 1 contract
Sources: Merger Agreement (Selectica Inc)
Indemnification Procedure. Each Party, if Indemnified Party shall promptly notify the other party from whom it is seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the ] upon becoming aware of a Third-Party Claim under this Section [“Indemnified Claim”]. Indemnifying Party shall promptly assume control of the defense and investigation of the Indemnified Claim, with counsel of its indemnification obligationchoosing, except and Indemnified Party shall cooperate with Indemnifying Party in connection therewith, in each case at Indemnifying Party’s sole cost and expense. Indemnified Party may participate in the defense of such Indemnified Claim, with counsel of its choosing and at its own cost and expense. Indemnifying Party shall not settle any Indemnified Claim without Indemnified Party’s prior written consent (which consent may not be unreasonably withheld, conditioned, or delayed). If Indemnifying Party fails or refuses to assume control of the extent it is actually prejudiced by defense of such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Indemnified Claim, Indemnified Party will have the right, exercisable by written but no obligation, to defend against such Indemnified Claim, including settling such Indemnified Claim after giving notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by in such manner and on such terms as Indemnified Party may deem appropriate. Neither Indemnified Party’s failure to perform any obligation under this Section nor any act or omission of Indemnified Party in the defense or settlement of any Indemnified Claim will relieve Indemnifying Party of its obligations under this Section, including with respect to any Losses, except to the extent that the Indemnifying Party or Indemnified Party, can demonstrate that it has been materially prejudiced as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)a result thereof.
Appears in 1 contract
Sources: Copyright License Agreement
Indemnification Procedure. Each Party, if (a) Any indemnified party seeking indemnification under this Article 15 Agreement (Indemnification) (the each, an “Indemnified Party”)) shall, will within the relevant limitation period provided in Article VII, promptly give [**] written notice of the claim to the other Party indemnifying party or parties (collectively, the “Indemnifying Party”)) written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claims for indemnification hereunder and shall include in the Claims Notice (if then known) the amount or method of computation of the amount of such claim and a reference to the provision of this Agreement or any agreement, certificate or instrument delivered pursuant to this Agreement upon which such claim is based; provided, that a Claim Notice in respect of any action at law or in equity by or against a third party as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided, further, any delay or failure to so notify the Indemnifying Party shall only relieve the Indemnifying Party of its obligations hereunder to the extent, if at all, that it is prejudiced by reason of such delay or failure.
(b) The Indemnifying Party shall have the right, at its own cost, to participate jointly in the defense of any claim or demand in connection with which the Indemnified Party has claimed indemnification hereunder, and may elect to take over the defense of such claim or demand through counsel of its own choosing by so notifying the Indemnified Party within thirty (30) days of receipt of the Indemnified Party’s Claim Notice. If the Indemnifying Party makes such an election:
(i) it shall keep the Indemnified Party reasonably informed as to the status of such matter and shall promptly send copies of all pleadings to the Indemnified Party;
(ii) with respect to any issue involved in such claim or demand, it shall have the sole right to settle or otherwise dispose of such claim or demand on such terms as it, in its sole discretion, shall deem appropriate; provided, however, that the consent of the Indemnified Party to the settlement or disposition of any failure claim or delay demand shall be required if such settlement or disposition shall result in providing any liability to, or equitable relief against, the Indemnified Party; and
(iii) the Indemnified Party shall have the right to participate jointly in the defense of such notice will claim or demand, but shall do so at its own cost not relieve subject to reimbursement under Section 8.1 or 8.2.
(c) If the Indemnifying Party of its indemnification obligation, except does not elect to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control take over the defense of the indemnification a claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to or demand, the Indemnified PartyParty shall have the right to contest, compromise or settle such claim or demand in the exercise of its reasonable judgment; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 any compromise or settlement of such claim or demand shall be required, which consent shall not be unreasonably withheld.
(Indemnification Procedure)d) Each party agrees that it shall cooperate with the other parties in the defense of any claim or action.
Appears in 1 contract
Indemnification Procedure. Each In the event any Buyer Indemnified Party or Seller Indemnified Party (each, an "Indemnified Party") becomes aware of a matter resulting in Losses or potential Losses to such Indemnified Party, if seeking with respect to which Buyer, Seller or Parent, as the case may be (the "Indemnifying Party"), may be required to provide indemnification under this Article 15 Agreement, the Indemnified Party shall, as soon as reasonably possible or necessary (Indemnificationbut not later than thirty (30) (the “Indemnified Party”days after becoming aware of such matter), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligationin writing. If such Losses are based on a third-party claim, except the Indemnified Party shall give to the extent it is actually prejudiced by Indemnifying Party all reasonable information and assistance for the defense and settlement of such failure or delay. Each Party will promptly furnish to matter at the other Party copies of all papers and official documents received in respect of any LossesIndemnifying Party's expense. The Indemnifying Party will have the right, exercisable by written notice to pay all damages and costs awarded therein against the Indemnified PartyParty which are attributable to such proceedings, to assume and control the defense of the indemnification claim at its own expense with counsel selected by but the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will not be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and responsible for any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do sosettlement payments made without their consent. The Indemnified Party will may also, subject to the Indemnifying Party's right to control the defense, participate in the defense with counsel of its choice, provided that the attorney's fees incurred by the Indemnified Party for such counsel shall be borne by the Indemnified Party. A claim for indemnification for Losses arising from any matter not settle or compromise involving a third-party claim may be asserted by the indemnification claim without the prior written consent of Indemnified Party by providing notice to the Indemnifying Party, and the Indemnifying Indemnified Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed shall be entitled to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by recover from the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate any Losses incurred in connection with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)matters.
Appears in 1 contract
Indemnification Procedure. Each Party, if 12.3.1 Any Dicerna Indemnified Party or Alnylam Indemnified Party seeking indemnification under this Article 15 hereunder (Indemnification) (the “Indemnified Party”), will give [**] written notice of ) shall notify the claim to the other Party against whom indemnification is sought (the “Indemnifying Party”); provided) in writing reasonably promptly after the assertion against the Indemnified Party of any Claim in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, however, that any but the failure or delay in providing such notice will so to notify the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligation, any obligation or liability that it may have to the Indemnified Party except to the extent it that the Indemnifying Party demonstrates that its ability to defend or resolve such Claim is actually prejudiced by such failure or delay. Each Party will promptly furnish adversely affected thereby.
12.3.2 Subject to the other Party copies provisions of all papers and official documents received in respect of any Losses. The Section 12.3.3, the Indemnifying Party will shall have the right, exercisable by written upon providing notice to the Indemnified PartyParty of its intent to do so within [***] days after receipt of the notice from the Indemnified Party of any Claim, to assume and control the defense and handling of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counselsuch Claim, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party’s sole expense.
12.3.3 The Indemnifying Party shall select competent counsel in connection with conducting the defense and handling of such Claim, and the Indemnifying Party will not settle shall defend or compromise handle the indemnification claim same in any manner that would have an adverse effect on consultation with the Indemnified Party’s interests (including any rights under this Agreement or , and shall keep the scope or enforceability Indemnified Party timely apprised of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)the status of such Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, agree to a settlement of any Claim which consentcould lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, in each case (by or would involve any admission of wrongdoing on the Indemnifying Party or part of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably shall cooperate with the Indemnifying Party Party, at the request and expense of the Indemnifying Party’s expense , and will make available shall be entitled to participate in the Indemnifying Party all pertinent information under the control defense and handling of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (such Claim with its own counsel and at its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)own expense.
Appears in 1 contract
Sources: Patent Cross License Agreement (Alnylam Pharmaceuticals, Inc.)
Indemnification Procedure. Each PartyIf an Indemnified Party is aware that a claim, if seeking demand or other circumstance exists that has given or may reasonably be expected to give rise to a right of indemnification under this Article 15 Agreement (Indemnification) whether or not the amount of the claim is then quantifiable), the Indemnified Party must promptly give written notice thereof to Servicer (the a “Indemnified PartyClaim Notice”), and the Indemnified Party will give [**] written notice thereafter keep Servicer reasonably informed with respect thereto, provided, that the failure of the claim Indemnified Party to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice give Servicer promptly a Claim Notice as provided will not relieve the Indemnifying Party Servicer of its indemnification obligation, obligations hereunder except to the extent it extent, if any, that Servicer’s rights have been prejudiced or Servicer’s liability has been increased thereby. In case any such action, suit, or proceeding is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the brought against an Indemnified Party, Servicer will be entitled to assume participate in (and control in its discretion, to assume) the defense of the indemnification claim at its own expense thereof with counsel selected by the Indemnifying Party and reasonably acceptable satisfactory to the Indemnified Party; provided, provided however, that an the Indemnified Party will have the right be allowed to retain participate in any such actions, suit or proceeding with counsel of its own counselchoice at the expense of Servicer if, at its own expense, except that in the fees and expenses good faith judgment of the Indemnified Party’s counsel, representation by Servicer’s counsel may present a conflict of interest or there may be defenses available to the Indemnified Party which are different from or in addition to those available to Servicer. Servicer will not settle any claim, action, suit or proceeding which would give rise to Servicer’s liability under its indemnity (i) without the prior written consent of Assignee, which consent will not be paid unreasonably withheld, and (ii) unless such settlement includes as an unconditional term thereof the giving by the Indemnifying Party if representation claimant or plaintiff of such a release of the Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due Party, in form and substance reasonably satisfactory to actual or potential differing interests between the Indemnified Party and any other party represented by its counsel, from all liability with respect to such counsel in such proceedingsclaim, action, suit or proceeding. If Servicer assumes the Indemnifying defense of any claim, action, suit or proceeding as provided in this Agreement, the Indemnified Party will be permitted to join in the defense thereof with counsel of its own selection and its own expense. If Servicer does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)any claim, then action, suit, or proceeding, the Indemnified Party may defend against such claim, action, suit, or proceeding in such a manner as it may deem appropriate, provided, that the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle any claim, action, suit or compromise the indemnification claim proceeding which would give rise to Servicer’s liability under its indemnity (i) without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified PartyServicer, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), consent will not be unreasonably withheld withheld, and (ii) unless such settlement includes as an unconditional term thereof the giving by the claimant or delayed. The Indemnified Party will plaintiff of a release of the Servicer, in form and substance reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available satisfactory to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (Servicer and its counsel, if applicable) regarding its defense of the action from all liability with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement respect to such claim, action, suit or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)proceeding.
Appears in 1 contract
Indemnification Procedure. Each If a Claim against the Indemnifying Parties for indemnification pursuant to the provisions of Section 6.2(a) of this Agreement is to be made by any Indemnified Party, if the Indemnified Party shall give notice reasonably describing such Claim to Seller and Seller Parent promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under Section 6.2(a). In the event a third-party Claim against an Indemnified Party arises that is covered by the indemnity provisions of Section 6.2(a) of this Agreement, provided that the Indemnifying Parties admit in writing to the party seeking indemnification under this Article 15 that such Claim is covered by the indemnity provisions of Section 6.2(a) hereof to the extent such Claim proves to be true, the Indemnifying Parties shall have the right to contest and defend by all appropriate legal proceedings such Claim and to control all settlements (Indemnificationunless the party seeking indemnification agrees to assume the cost of settlement and to forgo such indemnity) (and to select lead counsel to defend any and all such Claims at the “Indemnified Party”), will give [**] written notice sole cost and expense of the claim to the other Party (the “Indemnifying Party”)Parties; provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligationParties may not effect any settlement that could result in any cost, except to the extent it is actually prejudiced by such failure expense or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of liability to, or have any Losses. The Indemnifying Party will have the rightMaterial Adverse Effect upon, exercisable by written notice to the Indemnified PartyParty unless such party consents in writing to such settlement and the Indemnifying Parties agree to indemnify such party therefor, which consent shall not be unreasonably withheld and which consent or objection thereto must be provided in a timely manner as the circumstances dictate and in any event within ten (10) business days of such request. In the event the Indemnifying Parties do not admit in writing to assume and control the defense of the an Indemnified Party seeking indemnification claim at its own expense with counsel selected that such Claim, if true, is covered by the Indemnifying Party and reasonably acceptable to indemnity provisions of Section 6.2(a) hereof, the Indemnified PartyParty shall take such actions as it deems necessary to defend such Claim; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend not effect any settlement that could result in any cost, expense, liability to, or have any Material Adverse Effect upon, any Indemnifying Party without the indemnification claim but will have no obligation to do soconsent of such Indemnifying Party, which consent shall not be unreasonably withheld and which consent or objection thereto must be provided in a timely manner as the circumstances dictate and in any event within ten (10) business days of such request. The Indemnified Party will not settle or compromise the seeking indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim may select counsel to participate in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consentdefense, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not which event such counsel shall be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).Indemnified
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking (a) Promptly after the incurrence of any Losses by any Person entitled to indemnification under this Article 15 pursuant to Sections 8.1 or 8.2 (Indemnification) (the an “Indemnified Party”), will including any claim by a third party described in Section 8.4, that might give [**] written notice of rise to indemnification hereunder, the claim Indemnified Party shall deliver to the other Party from which indemnification is sought (the “Indemnifying Party”) a certificate (the “Certificate”); provided, howeverwhich Certificate shall:
(i) state that the Indemnified Party has paid or suffered or anticipates it will incur or suffer Losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement, that and
(ii) specify in reasonable detail (and have annexed thereto as applicable reasonable supporting documentation) each individual item of Loss included in the amount so stated, if applicable, the date such item was paid or accrued, the basis for any anticipated liability or other Losses and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be entitled hereunder. The failure or delay in providing such of any Indemnified Party to give timely notice will under this Section 8.3(a) shall not relieve the Indemnifying Party of affect its indemnification obligationrights to indemnification, except to the extent it is actually prejudiced that the Indemnifying Party demonstrates actual damage caused by such failure or delay. Each failure.
(b) In the event that the Indemnifying Party will promptly furnish shall object to the other indemnification of an Indemnified Party copies of all papers and official documents received in respect of any Losses. The claim or claims specified in any Certificate, the Indemnifying Party will have the rightshall, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected within thirty (30) days after receipt by the Indemnifying Party and reasonably acceptable of such Certificate, deliver to the Indemnified Party; providedParty a notice of objection to such effect, however, that an Indemnified Party will have specifying in reasonable detail the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of basis for such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Partyobjection, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party shall, within the sixty (and its counsel, if applicable60) regarding its defense day period beginning on the date of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses receipt by the Indemnified Party if of such settlement is reached without objection, attempt to agree upon the written rights of the respective Parties with respect to each of such claims to which the Indemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts within such time period, then either the Indemnified Party or the Indemnifying Party may submit such dispute to a court of competent jurisdiction as set forth in Section 10.10.
(c) Claims for Losses specified in any Certificate to which an Indemnifying Party shall not object in writing within thirty (30) days of receipt of such Certificate, claims for Losses covered by a memorandum of agreement of the nature described in Section 8.3(b), and claims for Losses the validity and amount of which have been the subject of judicial determination as described in Section 8.3(b), or shall have been settled with the consent of the Indemnifying Party pursuant as described in Section 8.4, are hereinafter referred to, collectively, as “Agreed Claims.” Within ten (10) Business Days of the determination of the amount of any Agreed Claim, the Indemnifying Party shall pay to this Section 15.3 the Indemnified Party an amount equal to the Agreed Claim by wire transfer in immediately available funds to the bank account or accounts designated by the Indemnified Party in a notice to the Indemnifying Party not less than two (Indemnification Procedure)2) Business Days prior to such payment.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integra Lifesciences Holdings Corp)
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 XIV (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”)) no later than [***] after becoming aware of the claim; provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party Party, copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that with the fees and expenses of the Indemnified Party’s counsel will to be paid by the Indemnifying Party Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 14.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that which would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope scope, validity, or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ Akebia hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be [***] Portions of this exhibit have been redacted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. unreasonably withheld or delayedwithheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 XIII (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 14.3 (Indemnification Procedure).
Appears in 1 contract
Sources: Collaboration and License Agreement (Akebia Therapeutics, Inc.)
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnificationa) Promptly after receipt by an Atlas Indemnified Party or a Titan Indemnified Party (the hereinafter collectively referred to as an “Indemnified Party”) of notice by a third party (including any Governmental Authority) of any Actions or the commencement of any audit with respect to which such Indemnified Party may be entitled to receive payment hereunder for any Atlas Losses or any Titan Losses (as the case may be), such Indemnified Party will give [**] written notice of notify Atlas or Representative, as the claim case may be (in such capacity, Atlas or Representative, is hereinafter referred to the other Party (the as an “Indemnifying Party”)) of such Action or audit; provided, however, that any the failure or delay in providing such notice to so notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligationfrom liability under this Agreement with respect to such Action or audit only if, except and only to the extent it that, the defense of such Actions or audit is actually prejudiced by such as a result of the failure or delayto notify the Indemnifying Party. Each Party will promptly furnish Notwithstanding Representative’s status as an Indemnifying Party, Representative shall have no personal liability hereunder and its obligations shall be satisfied only to the other Party copies extent of all papers and official documents received the General Escrow Units then held in respect of any Lossesescrow pursuant to the Escrow Agreement. The Indemnifying Party will have the right, exercisable by at its sole expense, upon written notice delivered to the Indemnified PartyParty within fifteen (15) calendar days after receiving such notice, to assume and control the defense of the indemnification claim at its own expense such Action with counsel selected by the Indemnifying Party and reasonably acceptable satisfactory to the Indemnified Party. In the event, however, that the Indemnifying Party declines or fails to (i) assume the defense of the Action on the terms provided above or (ii) employ counsel reasonably satisfactory to the Indemnified Party, in any case within such fifteen (15) day period, then such Indemnified Party may employ counsel to represent or defend it in any such Action and the Indemnifying Party will (subject to the other terms and provisions of this Agreement) pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that an the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Action. For avoidance of doubt, the fees and disbursements of counsel of any Atlas Indemnified Party in connection with an Atlas Loss shall be satisfied solely by receiving from the Escrow Agent a portion of the General Escrow Units, with such fees and expenses being converted into a number of General Escrow Units based on the Execution Date Unit Price, in an amount equal to such fees and disbursements. In any Action with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such Action, will have the right to participate in such matter and to retain its own counsel, counsel at its such Party’s own expense, except that the fees and expenses of . The Indemnifying Party or the Indemnified Party’s counsel , as the case may be, will be paid by at all times use reasonable efforts to (i) diligently conduct the Indemnifying Party if representation defense of such Indemnified Party by any Action for which it is maintaining the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between defense and (ii) keep the Indemnified Party and any other party represented by such counsel in such proceedings. If or the Indemnifying Party does not assume Party, as the case may be, reasonably apprised of the status of the defense of any Action the indemnification claim as described defense of which they are maintaining and to cooperate in this Section 15.3 good faith with each other with respect to the defense of any such Action.
(Indemnification Procedure), then the b) No Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise any Action or consent to the entry of any judgment with respect to which indemnification claim is being sought hereunder without the prior written consent of the Indemnifying Party, and unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party will from all liability arising out of such Action (and, where Representative is the Indemnifying Party, an unconditional release of all claims against the Titan Released Parties in respect of all Liability arising out of such Action), (ii) does not settle contain any admission or compromise statement of any wrongdoing or liability on behalf of the indemnification claim Indemnifying Party (and where Representative is the Indemnifying Party, the Titan Released Parties) and (iii) does not contain any equitable order, judgment or term that in any manner that would have an adverse effect on affects, restrains or interferes with the Indemnified business of the Indemnifying Party or any of the Indemnifying Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)affiliates. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any Action or consent to the entry of any judgment with respect to which consentindemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such Action, (ii) does not contain any admission or statement of any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term that in each case (by any manner affects, restrains or interferes with the Indemnifying business of the Indemnified Party or any of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The ’s affiliates.
(c) A claim for indemnification by an Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available for any matter not involving an Action by a third party may be asserted by written notice to the Indemnifying Party all pertinent information under from whom indemnification is sought. Such notice will specify with reasonable specificity the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable basis for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)claim.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking (a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Article 15 (Indemnification) (Agreement, such Indemnified Party will, within a reasonable period of time following the “Indemnified Party”), will give [**] written notice discovery of the claim matters giving rise to any Losses, notify the other Party indemnifying party under this Section 11 (the “Indemnifying Party”)) in writing of its claim for indemnification for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided, however, that any failure or delay in providing to give such notice notification will not relieve affect the Indemnifying Party of its indemnification obligationprovided hereunder, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the rightIndemnified Party will deliver to the Indemnifying Party, exercisable by written notice to within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses.
(b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party will be entitled to assume and control the defense of the indemnification claim such Third Party Claim at its own expense with counsel selected by the Indemnifying Party. Should the Indemnifying Party and reasonably acceptable so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party; providedParty for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, however, that an the Indemnified Party will have the right to retain its own participate in the defense thereof and to employ counsel, at its own expenseexpense (which expense shall not constitute a Loss), except separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party’s counsel will be paid by Party for any period during which the Indemnifying Party if representation of such Indemnified Party by has not assumed the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between defense thereof (other than during any period in which the Indemnified Party and any other party represented by such counsel in such proceedingswill have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party does not assume chooses to defend or prosecute a Third Party Claim, all of the Parties will cooperate in the defense of or prosecution thereof. Such cooperation will include the indemnification claim as described in this Section 15.3 retention and (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without obtain the prior written consent of the Indemnified PartyParty (not to be unreasonably withheld, which consentconditioned or delayed) before entering into any settlement, in each case compromise or discharge of such Third Party Claim if (by i) such settlement, compromise or discharge does not relate solely to monetary damages, (ii) such settlement, compromise or discharge does not expressly unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim and (iii) the Indemnifying Party is not directly paying the full amount of the Losses in connection with such Third Party Claim. Whether or Indemnified Partynot the Indemnifying Party will have assumed the defense of a Third Party Claim, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate not admit any liability with the Indemnifying respect to, or settle, compromise or discharge, such Third Party at Claim without the Indemnifying Party’s expense prior written consent (not to be unreasonably withheld, conditioned or delayed).
(c) Each Indemnified Party shall take, and will make available shall cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would reasonably be expected to, or such Indemnified Party believes does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that such failure to use such efforts in accordance with the foregoing shall not relieve the Indemnifying Party all pertinent information of its indemnification obligations under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates Section 9 except and only to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of extent that the Indemnifying Party is prejudiced thereby.
(d) All indemnification payments made pursuant to this Section 15.3 (Indemnification Procedure)9 shall be treated as an adjustment to the Purchase Price by the Parties for Tax purposes, unless otherwise required by applicable Law.
Appears in 1 contract
Sources: Asset Purchase Agreement (Eton Pharmaceuticals, Inc.)
Indemnification Procedure. Each In any case under this Agreement where one Party has indemnified the other against any Claim, indemnification shall be conditioned on compliance with the procedure outlined below:
(a) Provided that prompt notice is given of a Claim for which indemnification might be claimed, unless the failure to provide such notice does not actually and materially prejudice the interests of the Party to whom such notice is to be provided, the Indemnifying Party promptly will defend, contest, or otherwise protect against any such Claim at its own cost and expense. Such notice shall describe the Claim in reasonable detail and shall indicate the amount (estimated, if necessary) of the loss that has been or may be suffered by the Indemnified Party.
(b) The Indemnified Party may, but will not be obligated to, participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter. The Indemnifying Party may only settle or compromise the matter subject to indemnification without the consent of the Indemnified Party if such settlement includes a complete release of all Indemnified Parties as to the matters in dispute. The Indemnified Party will not unreasonably withhold, delay or condition its consent to any settlement or compromise that requires its consent.
(c) In the event that the Indemnifying Party fails to timely defend, contest, or otherwise protect against any such Claim, the Indemnified Party may, but will not be obligated to, defend, contest, or otherwise protect against the same, and make any compromise or settlement thereof and recover the entire costs thereof from the Indemnifying Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [including **] written notice * Certain confidential portions of this exhibit were omitted by means of redacting a portion of the claim text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the other Party (Securities Exchange Act. reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Claim or suit or the “Indemnifying Party”)compromise or settlement thereof; provided, however, that any failure or delay in providing such notice will not relieve if the Indemnifying Party undertakes the defense of such matter, the Indemnified Party shall not be entitled to recover from the Indemnifying Party for its costs incurred in the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party and reasonable costs of providing assistance.
(d) The Indemnified Party shall cooperate and provide such assistance as the Indemnifying Party may reasonably request in connection with the defense of the matter subject to indemnification obligationand in connection with recovering from any third parties amounts that the Indemnifying Party may pay or be required to pay by way of indemnification hereunder. The Indemnified Party shall take commercially reasonable steps to protect its position with respect to any matter that may be the subject of indemnification hereunder in the same manner as it would any similar matter where no indemnification is available.
(e) If and to the extent that any indemnification obligation under this Section 13.2 is unenforceable for any reason, the Indemnifying Party hereby agrees to make the maximum contribution permissible under Applicable Law to the payment and satisfaction of the losses of the Indemnified Party, except to the extent it is actually prejudiced such losses are found in a final, nonappealable judgment by such failure or delay. Each Party will promptly furnish a court of competent jurisdiction to the other Party copies of all papers and official documents received in respect of have resulted from any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual gross negligence or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)willful misconduct.
Appears in 1 contract
Indemnification Procedure. Each PartyTo be eligible to be so Indemnified as described in Section 13.1 or Section 13.2 above, if each of the GENE Indemnitees or Amgen Indemnitees, as the case may be (the "Indemnitee(s)"), seeking indemnification under this Article 15 (Indemnificationto be Indemnified, shall provide the Party required to Indemnify the Indemnitee(s) (the “Indemnified "Indemnifying Party”), will give [**] written ") with prompt notice of any claim (with a description of the claim and the nature and amount of any such Loss) giving rise to the other Party indemnification obligation pursuant to Section 13.1 or Section 13.2, as the case may be, and the exclusive ability to defend such claim but for the differing interests exception set forth below (with the “Indemnifying Party”reasonable cooperation of Indemnitee(s)); provided, provided however, that any the failure or delay in providing such to provide notice will shall not relieve the Indemnifying Party of its indemnification obligation, obligations except to the extent it is actually prejudiced any failure by the Indemnitee(s) to deliver prompt notice shall have been prejudicial to its ability to defend such failure or delayaction. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will Indemnitee(s) shall have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by of the Indemnifying Party would be inappropriate due to actual or potential differing interests between such Indemnitee(s) and the Indemnified Party and any other party represented by such counsel in such proceedingsIndemnifying Party. If Neither the Indemnitee(s) nor the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not shall settle or compromise consent to the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability entry of any Patents, Confidential Information, or other rights licensed judgment with respect to Licensee by ▇▇▇▇▇▇ hereunder)any claim for Losses for which indemnification is sought, without the prior written consent of the Indemnified Partyother Party (not to be unreasonably withheld); provided however, which consent, in each case (by the Indemnifying Party shall have the right to settle or Indemnified Party, as compromise any claim for Losses without such prior written consent if the case may be), will not be unreasonably withheld settlement or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control compromise provides for an unconditional release of the Indemnified Party, which information will be subject to Article 14 (ConfidentialityIndemnitee(s). The Indemnifying Party will provide periodic updates Party's obligation to Indemnify the Indemnified Party (and its counsel, if applicableIndemnitee(s) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 13.3 shall not apply to the extent of any Losses (Indemnification Procedurei) that arise from the negligence or intentional misconduct of any Indemnitee (including but not limited to, in the case of GENE Indemnitees, those Losses arising from Research Plan activities and the Co-Detailing of Product(s) by GENE, or, in the case of Amgen Indemnitees, those Losses arising from Research Plan activities and the Development or Commercialization of Product(s) by Amgen); or (ii) that, in the case of GENE Indemnitees, arise from the breach by GENE or, in the case of Amgen Indemnitees, arise from the breach by Amgen, of any representation, warranty, covenant or obligation under this Agreement; or (iii) that arise from the failure of the Indemnitee(s) to take reasonable action to mitigate any Losses.
Appears in 1 contract
Sources: Research Collaboration and License Agreement (Genome Therapeutics Corp)
Indemnification Procedure. Each The party obliged to indemnify ("Indemnifying Party") shall defend with counsel of its choosing any claim, if demand, suit or other action (each, a "Claim") brought against each person seeking indemnification to be reimbursed, indemnified, defended, and/or held harmless (each an "Indemnified Party"). The Indemnified Party shall notify the Indemnifying Party promptly in writing of any Claims for which the Indemnified Party alleges that the Indemnifying Party is responsible under this Article 15 (Indemnification) (the “Indemnified Party”)16, will give [**] written which notice shall include a reasonable identification of the claim alleged facts giving rise to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Claim. The Indemnifying Party shall be relieved of its indemnification obligation, except liability hereunder to the extent it is actually prejudiced by such the Indemnified Party's failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Lossesgive prompt notice. The Indemnifying Party will have the right, exercisable shall also be relieved of liability hereunder for settlement by written notice to the Indemnified Party, Party of any Claim unless the Indemnifying Party has approved the settlement in advance (such approval not to assume and control be unreasonably withheld) or unless the defense of the indemnification claim at its own expense with counsel selected by Claim has been tendered to the Indemnifying Party in writing and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by has failed promptly to undertake the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do sodefense. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will shall reasonably cooperate with the Indemnifying Party at and its agents in defense of any Claim for which such Indemnified Party seeks to be reimbursed, indemnified, defended, or held harmless. Each Indemnified Party shall have the Indemnifying Party’s expense and will make available right to participate in the Indemnifying Party all pertinent information under the control defense of the any such Claim, by using attorneys of such Indemnified Party's choice, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the at such Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Party's expense.
Appears in 1 contract
Sources: Mainframe Computing Services Agreement (Tsi Finance Inc)
Indemnification Procedure. Each (a) Promptly after receipt by a Parent Indemnified Party or a Shareholder Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from a third party of any complaint or the commencement of any action, if seeking indemnification under this Article 15 proceeding or claim with respect to which such Indemnified Party may be entitled to receive payment from the other party for any Parent Losses or Shareholder Losses (Indemnification) as the case may be and subject to the limitation on Parent Losses and Shareholder Losses in Section 7.3), such Indemnified Party shall notify Parent or the Shareholders (through the Shareholder Representative), whoever is the appropriate indemnifying party hereunder (the “Indemnified "Indemnifying Party”"), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”)commencement of such action, proceeding or claim; provided, however, that any the failure or delay in providing such notice will to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligationfrom liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such matter only if, except and only to the extent it is actually prejudiced by that, such failure or delay. Each to notify the Indemnifying Party will promptly furnish results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the other Indemnifying Party copies of all papers and official documents received in with respect of any Lossesto such matter. The Indemnifying Party will shall have the right, exercisable by upon written notice delivered to the Indemnified Party within twenty (20) days thereafter, to assume the defense of such matter, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the matter or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such twenty (20) day period, then such Indemnified Party may employ counsel to assume represent or defend it in any such action or proceeding and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party shall pay the reasonable fees and reasonably acceptable to the Indemnified Partydisbursements of such counsel as incurred; provided, however, that an the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party will or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel, counsel at its such party's own expense, except that the fees and expenses of . The Indemnifying Party or the Indemnified Party’s counsel will be paid by , as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If Party, as the Indemnifying Party does not assume case may be, reasonably apprised of the status of the defense of any action the indemnification claim as described defense of which they are maintaining and to cooperate in this Section 15.3 good faith with each other with respect to the defense of any such action.
(Indemnification Procedure), then the b) No Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification claim is being sought hereunder without the prior written consent of the Indemnifying Party, and unless (i) the Indemnifying Party will not settle fails to assume and maintain the defense of such claim pursuant to Section 7.4(a); or (ii) such settlement, compromise or consent includes an unconditional release of the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability Indemnifying Party from all liability arising out of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which consentindemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which in each case (by any manner affects, restrains or interferes with the Indemnifying business of the Indemnified Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control any of the Indemnified Party's respective affiliates.
(c) In the event an Indemnified Party shall claim a right to payment (or, which information will be subject a credit towards the Shareholders Basket Amount or Parent Basket Amount) pursuant to Article 14 (Confidentiality)this Agreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. The Such notice shall specify the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party will provide periodic updates shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five business days of the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Party immediately available funds (and its counselor, if applicable) , shall provide notice to the escrow agent regarding its defense disbursement of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent appropriate portion of the Indemnifying Party pursuant escrow fund) in an amount equal to this Section 15.3 such claim as determined hereunder (Indemnification Procedureor shall record an appropriate credit against the Shareholder Basket Amount or Parent Basket Amount).
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking Party will notify the other Party in writing in the event it becomes aware of a Third Party Claim for which indemnification may be sought hereunder. The Party entitled to indemnification under this Article 15 Section 12.1 (IndemnificationGeneral Indemnification by Biogen) or 12.2 (General Indemnification by Sage) (the an “Indemnified Party”), ) will give [**] written notice of notify the claim to the other Party potentially responsible for such indemnification (the “Indemnifying Party”)) in writing promptly upon being notified of or having knowledge of any Third Party Claim asserted or threatened against the Indemnified Party that could give rise to a right of indemnification under this Agreement; provided, however, provided that any the failure or delay in providing to give such notice will not relieve the Indemnifying Party of its indemnification obligation, indemnity obligation hereunder except to the extent it is actually prejudiced by that such failure or delay. Each Party will promptly furnish to materially prejudices the other Party copies of all papers and official documents received in respect of any LossesIndemnifying Party. The Indemnifying Party will have the right, exercisable by written notice to and the Indemnified Party, Party will meet to assume and control the defense of the indemnification claim at its own expense discuss how to respond to any Third Party Claim. The Indemnified Party will cooperate fully with counsel selected by the Indemnifying Party and reasonably acceptable to in defense of such Third Party Claim. In any such proceeding, the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that but the fees and expenses of the Indemnified Party’s such counsel will be paid by at the expense of the Indemnified Party unless (a) the Indemnifying Party if representation and the Indemnified Party will have agreed to the retention of such Indemnified Party by counsel or (b) the counsel retained by named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses of the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense application of the indemnification claim as described in this Section 15.3 foregoing clause (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but a) or (b) will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (be reimbursed by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developmentsthey are incurred. The Indemnifying Party will not be liable for any settlement of any proceeding effected without its written consent, but, if settled with such consent or other disposition of Losses by if there is a final judgment for the Third Party plaintiff, then the Indemnifying Party agrees to indemnify the Indemnified Party if from and against any Losses by reason of such settlement is reached or judgment. The Indemnifying Party will not, without the written consent of the Indemnifying Indemnified Party pursuant (such consent not to this Section 15.3 (Indemnification Procedurebe unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which the Indemnified Party is, or could have been, a party and indemnity could have been sought hereunder by the Indemnified Party, unless such settlement includes an unconditional release of the Indemnified Party from all liability on claims that are the subject matter of such proceeding.
Appears in 1 contract
Sources: Collaboration and License Agreement (Sage Therapeutics, Inc.)
Indemnification Procedure. Each PartyThe indemnified party shall give ------------------------- prompt written notice to the indemnifying party of any suits, if seeking claims or demands by third parties or the indemnified party which may give rise to any loss for which indemnification may be required under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”)Section 18; provided, however, that any the -------- ------- failure or delay in providing to give such notice will shall not relieve impair the Indemnifying Party obligation of its the indemnifying party to provide indemnification obligation, hereunder except if and to the extent it is actually prejudiced by that such failure materially impairs the ability of the indemnifying party to defend the applicable suit, claim or delaydemand. Each Party will promptly furnish The indemnifying party shall be entitled to assume the other Party copies of all papers defense and official documents received in respect control of any Losses. The Indemnifying Party will have the rightsuit, exercisable by written notice to the Indemnified Party, to assume and control the defense claim or demand of the indemnification claim any third party at its own expense with counsel selected by the Indemnifying Party cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, -------- ------- that an Indemnified Party will the other party shall have the right to retain be represented by its own counsel, counsel at its own expense, except cost in such matters. In the event that the fees indemnifying party shall decline to assume control of any such suit, claim or demand, the party entitled to indemnification shall be entitled to assume such control, conduct the defense of, and expenses settle such suit, claim or action, all at the sole cost and expense of the Indemnified Party’s counsel will be paid by indemnifying party. Neither the Indemnifying Party if representation indemnifying party nor the indemnified party shall settle or dispose of any such Indemnified Party by matter in any manner which would adversely impact the counsel retained by rights or interests of the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Partyindemnified party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will shall not be unreasonably withheld or delayedwithheld. The Indemnified Party will reasonably Each party shall cooperate with the Indemnifying Party at other party and its counsel in the Indemnifying Party’s expense and will course of the defense of any such suit, claim or demand, such cooperation to include using reasonable efforts to provide or make available to the Indemnifying Party all pertinent documents, information under the control of the Indemnified Party, which information will and witnesses. XXXXXX Such indemnification shall not be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates the proportional reduction referred to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this in Section 15.3 (Indemnification Procedure)18.2.
Appears in 1 contract
Sources: Development and Manufacturing Agreement (Centocor Inc)
Indemnification Procedure. Each Party, if If either Party is seeking indemnification under this Article 15 (Indemnification) Sections 10.1 or 10.2 (the “Indemnified Party”), will give [**] written notice of the claim to it shall inform the other Party (the “Indemnifying Party”); provided) of the Claim giving rise to the obligation to indemnify pursuant to such Section as soon as reasonably practicable after receiving notice of the Claim. The failure to give prompt written notice shall not, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligationobligations, except and only to the extent it is actually prejudiced that the Indemnifying Party forfeits rights or defenses by reason of such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Lossesfailure. The Indemnifying Party will shall have the right, exercisable right to assume the defense or settlement of any such Claim for which it is obligated to indemnify the Indemnified Party by giving written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 within thirty (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of 30) days after the Indemnifying Party, and ’s receipting of a Claim notice; provided that the Indemnifying Party will not settle or compromise the indemnification claim in enter into any manner settlement that would have an adverse effect on adversely affects the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), obligations without the prior written consent of the Indemnified Party’s prior express written consent, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld withheld, conditioned or delayed. The Indemnified Party will reasonably shall cooperate with the Indemnifying Party and the Indemnifying Party’s insurer as the Indemnifying Party may reasonably request, and at the Indemnifying Party’s expense cost and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality)expense. The Indemnifying Party will provide periodic updates shall retain counsel reasonably acceptable to the Indemnified Party (and its counselsuch acceptance not to be unreasonably withheld, if applicableconditioned or delayed) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by to represent the Indemnified Party if and shall pay the fees and expenses of such counsel related to such proceeding. The Indemnified Party shall have the right to participate, at its own expense and with counsel of its choice, in the defense of any Claim that has been assumed by the Indemnifying Party. Neither Party shall have the obligation to indemnify the other Party in connection with any settlement is reached made without the Indemnifying Party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the Parties cannot agree as to the application of Section 10.1 or 10.2 as to any Claim, pending resolution of the Indemnifying Party dispute pursuant to this Section 15.3 (Indemnification Procedure)11.8, the Parties may conduct separate defenses of such Claims, with each Party retaining the right to claim indemnification from the other Party in accordance with Section 10.1 or 10.2 upon resolution of the underlying Claim.
Appears in 1 contract
Indemnification Procedure. Each Party, if The Party seeking indemnification under this Article 15 (Indemnification) hereunder (the “Indemnified Party”), will ) shall: (a) give [**] written notice of the claim Party obligated to the other Party indemnify (the “Indemnifying Party”) prompt written notice of any such claim or law suit (including a copy of any notice thereof); provided, however, that (b) not make any failure or delay admission of liability in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except relation to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise or settle the indemnification claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld or delayed); (c) if so requested permit the Indemnifying Party, and in the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent name of the Indemnified Party, which consent, in each case (by to have sole conduct of all matters relating to the Indemnifying Party or Indemnified Party, claim as it may deem appropriate provided that it keeps the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably informed of the steps which are being taken in relation to the claim; (d) reasonably cooperate with the Indemnifying Party at and its legal representatives in the investigation and defence of any matter that is the subject of indemnification (provided that the Indemnifying Party pays or reimburses it in relation to its reasonable costs in complying with such requirement); and (e) not unreasonably withhold its approval of the settlement of any such claim, liability, or action by Indemnifying Party covered by this indemnification provision; provided, however, that Indemnified Party’s failure to comply with its obligations under this Clause shall not constitute a breach of this Agreement nor relieve Indemnifying Party of its indemnification obligations, except to the extent, if any, that Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control defence of the Indemnified Partyaffected claim, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)proceeding actually was materially impaired thereby.
Appears in 1 contract
Indemnification Procedure. Each In any case under this Agreement where Seller has indemnified a Buyer Indemnified Party or Buyer has indemnified a Seller Indemnified Party (the indemnifying party hereinafter the "Indemnifying Party" and the party entitled to indemnification hereinafter the "Indemnified Party") against any Claim, if seeking indemnification shall be conditioned on compliance with the procedure and shall be subject to the limitations outlined below:
(a) Provided that prompt notice is given of a Claim for which indemnification might be claimed under this Article 15 10, unless the failure to provide such notice does not actually and materially prejudice the interests of the Indemnifying Party, the Indemnifying Party promptly will defend, contest, or otherwise protect against any such Claim at its own cost and expense. Such notice shall describe the Claim in reasonable detail and shall indicate the amount (Indemnificationestimated, if necessary) (of the “loss that has been or may be suffered by an Indemnified Party”).
(b) An Indemnified Party may, but will give [**] written notice not be obligated to, participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless such Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter, provided that the Indemnifying Party may only settle or compromise the matter subject to indemnification without the consent of the claim Indemnified Party if such settlement includes a complete release of all Indemnified Parties as to the other matters in dispute and provided further that such Indemnified Party will not unreasonably withhold consent to any settlement or compromise that requires its consent.
(c) In the “event the Indemnifying Party fails to timely defend, contest, or otherwise protect against any such Claim, an Indemnified Party may, but will not be obligated to, defend, contest, or otherwise protect against the same, and make any reasonable compromise or settlement thereof and recover the entire costs thereof from the Indemnifying Party”), including reasonable attorneys' fees, disbursements and all amounts paid as a result of such Claim or the compromise or settlement thereof; provided, however, that any failure or delay in providing such notice will not relieve if the Indemnifying Party undertakes the defense of its indemnification obligationsuch matter, except an Indemnified Party shall not be entitled to recover from the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have for its costs incurred in the right, exercisable by written notice to defense thereof other than the reasonable costs of providing assistance.
(d) The Indemnified Party, to assume Parties shall cooperate and control provide such assistance as the Indemnifying Party may reasonably request in connection with the defense of the matter subject to indemnification claim at its own expense and in connection with counsel selected by recovering from any third parties amounts that the Indemnifying Party and reasonably acceptable may pay or be required to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses pay by way of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do sohereunder. The Indemnified Party will not settle or compromise Parties shall take commercially reasonable steps to protect its position with respect to any matter that may be the subject of indemnification claim without hereunder in the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the same manner as it would any similar matter where no indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)available.
Appears in 1 contract
Indemnification Procedure. Each PartyThe indemnifying party’s agreement and obligation to indemnify, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to defend and hold the other Party (harmless is conditioned on the “Indemnifying Party”); provided, however, that any failure or delay in indemnified party:
12.3.1 promptly providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Partyindemnifying party of any Claim resulting from, arising from or out of, relating to, in the nature of, or caused by the indemnified activities set forth in Section 12.1 and Section 12.2, at most within [***] after becoming aware of such Claim; provided that failure to provide prompt notice will relieve the indemnifying party of its indemnification obligations only to the extent that indemnifying party has been materially prejudiced as a result of such failure;
12.3.2 permitting the indemnifying party to assume full responsibility to select its choice of counsel, investigate, prepare for and control defend against any such Claim; provided that the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will indemnified party shall have the right to retain its own counsel, separate legal counsel and participate in any defense of any Claim at its own expense;
12.3.3 reasonably assisting the indemnifying party, except that at the fees indemnifying party’s reasonable expense, in the investigation of, preparation for, and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will any such Claim; and
12.3.4 not settle compromising or compromise the indemnification claim settling such Claim without the prior indemnifying party’s written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, consent. Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)& Proprietary The indemnifying party may not, without the prior indemnified party’s written consent of the Indemnified Party, which consent, compromise or settle any Claim resulting from, arising from or out of, relating to, in each case (the nature of, or caused by the Indemnifying Party indemnified activities set forth in Section 12.1 and Section 12.2 if such compromise or Indemnified Party, as settlement admits liability on behalf of or imposes any restrictions or obligations on the case may be), will not be unreasonably withheld or delayedindemnified party. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will indemnifying party shall make available quarterly payments to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable indemnified parties for any settlement or other disposition of documented Losses by the Indemnified Party if resulting from such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Claim.
Appears in 1 contract
Sources: Market Access Services Agreement (Myovant Sciences Ltd.)
Indemnification Procedure. Each Party, if seeking (a) In the case of any claim asserted by a third party against a party entitled to indemnification under this Article 15 (Indemnification) Agreement (the “"Indemnified Party”"), will give [**] written notice of shall be given by the claim Indemnified Party to the other Party indemnifying party (the “Indemnifying Party”); provided, however, that any failure or delay in providing "Indemnitor") promptly after such notice will not relieve the Indemnifying Indemnified Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect has actual knowledge of any Losses. The Indemnifying claim as to which indemnity may be sought, and the Indemnified Party will have shall permit the rightIndemnitor (at Indemnitor's expense) to assume the defense of any claim or any litigation resulting therefrom, exercisable by written notice provided that (i) the counsel for the Indemnitor who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then ii) the Indemnified Party may defend participate in such defense at such Indemnified Party's expense, and (iii) the indemnification claim but will have no obligation to do so. The omission by any Indemnified Party will to give notice as provided herein shall not settle or compromise relieve the Indemnitor of its indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights obligation under this Agreement or except to the scope or enforceability extent that such omission results in a failure of any Patents, Confidential Information, or other rights licensed actual notice to Licensee by ▇▇▇▇▇▇ hereunder), without the Indemnitor and the Indemnitor is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Indemnified Party, which consentthe Indemnitor, in the defense of any such claim or litigation, shall not consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each case (claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Indemnified Party shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the Indemnifying Indemnitor might be expected to affect adversely the Indemnified Party's tax liability or the ability of the Indemnified Party or Indemnified Partyany of its subsidiaries to conduct its business, as or that the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate may have available to it one or more defenses or counterclaims that are inconsistent with the Indemnifying Party at the Indemnifying Party’s expense and will make one or more of those that may be available to the Indemnifying Party all pertinent information under the control Indemnitor in respect of the Indemnified Partysuch claim or any litigation relating thereto, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (shall have the right at all times to take over and its counselassume control over the defense, if applicable) regarding its defense settlement, negotiations or litigation relating to any such claim at the sole cost of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by Indemnitor, provided that if the Indemnified Party if does so take over and assume control, the Indemnified Party shall not settle such settlement is reached claim or litigation without the written consent of the Indemnifying Indemnitor, such consent not to be unreasonably withheld. In the event that the Indemnitor does not accept the defense of any matter as above provided, the Indemnified Party pursuant shall have the full right to defend against any such claim or demand and shall be entitled to settle or agree to pay in full such claim or demand. Notwithstanding the foregoing, the Indemnitor shall still provide indemnification to the Indemnified Party. In any event, the Indemnitor and the Indemnified Party shall cooperate in the defense of any claim or litigation subject to this Section 15.3 and the records of each shall be available to the other with respect to such defense.
(Indemnification Procedure)b) The obligations of the parties under this Section shall survive the execution and delivery of this Agreement for a period of two (2) years.
Appears in 1 contract
Sources: Assignment Agreement (El Sitio Inc)
Indemnification Procedure. Each Party, if (a) Within a reasonable time after the incurrence of any Loss and Expense by the party seeking indemnification under this Article 15 (Indemnification) (the “"Indemnified Party”"), will including, without limitation, any claim by a third party described in Section 6.4(c), that might give [**] written notice rise to indemnification hereunder, the Indemnified Party shall deliver to the party from which indemnification is sought (the "Indemnifying Party") a certificate (the "Certificate"), which Certificate shall:
(2) specify in reasonable detail each individual item of Loss and Expense included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty or claim to which each such item is related and the other computation of the amount to which such Indemnified Party (claims to be entitled hereunder. Failure of an Indemnified Party to deliver a Certificate as provided in this Section 6.4(a) shall not affect such Indemnified Party's right to indemnification hereunder unless and to the “extent that such failure actually prejudices the Indemnifying Party”); provided.
(b) In case the Indemnifying Party shall object to the indemnification of an Indemnified Party in respect of any claim or claims specified in any Certificate, howeverthe Indemnifying Party shall, that any failure or delay in providing such notice will not relieve within thirty (30) calendar days after receipt by the Indemnifying Party of its indemnification obligationsuch Certificate, except deliver to the extent it is actually prejudiced by such failure or delay. Each Indemnified Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by a written notice to the Indemnified Party, to assume such effect and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; providedParty shall, however, that an within the thirty (30) calendar day period beginning on the date of receipt by the Indemnified Party will have of such written objection, attempt in good faith to agree upon the right to retain its own counsel, at its own expense, except that the fees and expenses rights of the Indemnified Party’s counsel will be paid by respective parties with respect to each of such claims to which the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between shall have so objected. If the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume shall succeed in reaching agreement on their respective rights with respect to any of such claims, the defense of Indemnified Party and the indemnification claim Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as described in this Section 15.3 (Indemnification Procedure)to any particular item or items or amount or amounts, then the Indemnified Party may defend and the indemnification claim but will have no obligation Indemnifying Party shall submit such dispute to do so. The a court of competent jurisdiction.
(c) action (including any impleaded parties) include both such Indemnified Party will not settle and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there exists a conflict of interest between the Indemnifying Party and the Indemnified Party. No Indemnifying Party shall be liable to indemnify any Indemnified Party for any settlement of any such action or compromise the indemnification claim effected without the prior consent of the Indemnifying Party but if settled with the written consent of the Indemnifying Party, and or if there be a final judgment for the plaintiff in any such action, the Indemnifying Party will not settle shall indemnify and hold harmless each Indemnified Party from and against any loss or compromise the indemnification claim liability by reason of such settlement or judgment.
(d) Claims for Loss and Expense specified in any manner that would Certificate to which an Indemnifying Party shall not object in writing within thirty (30) calendar days of receipt of such Certificate, claims for Loss and Expense covered by a memorandum of agreement of the nature described in Section 6.4(b), claims for Loss and Expense the validity and amount of which shall have an adverse effect on been the Indemnified Party’s interests subject of judicial determination as described in Section 6.4(b) and claims for Loss and Expense the validity and amount of which shall have been the subject of a final judicial determination as described in Section 6.4(c) are hereinafter referred to, collectively, as "Agreed Claims." Within ten (including any rights under this Agreement or 10) Business Days of the scope or enforceability determination of the amount of any PatentsAgreed Claim, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates shall pay to the Indemnified Party (and its counsel, if applicable) regarding its defense an amount equal to the Agreed Claim by wire transfer of immediately available funds to the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement bank account or other disposition of Losses accounts designated in writing by the Indemnified Party if not less than two (2) Business Days prior to such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)payment.
Appears in 1 contract
Sources: Stock Option and Purchase Agreement (Perot Systems Corp)
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 5.2 (the “Indemnified Party”), will ) shall give [**] written notice of the claim to the other Party party from whom indemnification is sought (the “Indemnifying Party”) prompt written notice of any third-party claim which may give rise to any indemnity obligation under this Section 5.2, setting forth in reasonable detail the basis for the third-party claim, the facts giving rise to the third-party claim and the amount of the third-party claim (or, if such amount is not yet known, a reasonable estimate of the amount of the third-party claim), and the Indemnifying Party shall have the right to assume the defense of any such claim through counsel of his own choosing, by so notifying the Indemnified Party within 10 Business Days of receipt of the Indemnified Party’s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received extent such failure results in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected forfeiture by the Indemnifying Party of rights and reasonably acceptable defenses otherwise available to it. If the Indemnified Party desires to participate in any such defense assumed by the Indemnifying Party, it may do so at its sole cost and expense; provided, however, that an the Indemnified Party will have shall be entitled to participate in any such defense with separate counsel at the right expense of the Indemnifying Party if, in the reasonable judgment of counsel to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume any such defense or fails to diligently pursue any such defense, then the Indemnifying Party shall be liable for all reasonable costs and expenses incurred by the Indemnified Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including reasonable fees and disbursements of counsel. The parties hereto agree to cooperate with each other in connection with the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do soany such claim. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)shall not, without the prior written consent of the Indemnified Party, which consentsettle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (x) does not result in each case (by the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (y) does not involve any remedies other than monetary damages, and (z) includes an unconditional release of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayedParty and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Partyshall not, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, delayed or conditioned (unless such consent requires the Indemnifying Party pursuant to this admit or suggest the admission of any criminal act or involves any remedies against the Indemnifying Party other than monetary damages), settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party is not disputed by the Indemnifying Party within 30 days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 15.3 5.2(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (Indemnification Proceduresuch written notice, Law, settlement or agreement, a “Resolution”), the applicable Indemnifying Party shall pay to the Indemnified Party promptly following such Resolution an amount equal to the Losses of such Indemnified Party as set forth in such Resolution.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking (a) Promptly after the incurring of Losses by any Party or other Person entitled to indemnification under this Article 15 Section 8 (Indemnification) (the each, an “Indemnified Party”), will including any claim by a third party described in Sections 8.3(c) and 8.3(d) which might give [**] written notice of rise to indemnification hereunder, the claim Indemnified Party shall promptly deliver a certificate containing the information described below (a “Certificate”) to the other Party that is required to indemnify such Indemnified Party under Section 8 (such indemnifying party, the “Indemnifying Party”); provided, however, that delivery of a Certificate to Seller by any failure Indemnified Party seeking indemnification from Seller shall be deemed to be the delivery of a Certificate to Seller. Each Certificate shall:
(i) state that the Indemnified Party has paid or delay properly accrued Losses or reasonably anticipates that it will incur liability for Losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement; and
(ii) specify in providing reasonable detail each individual item of Loss included in the amount so stated, the date such notice will not relieve item was paid, properly accrued or is estimated to be paid, the basis for any anticipated liability and the nature of the misrepresentation, inaccuracy or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be entitled under Section 8.2 of this Agreement.
(b) In case the Indemnifying Party shall object to the indemnification of an Indemnified Party in respect of any claim or claims specified in any Certificate, the Indemnifying Party shall, within thirty (30) days after receipt by the Indemnifying Party of its indemnification obligationsuch Certificate, except deliver to the extent it is actually prejudiced Indemnified Party a written notice to such effect and the Indemnifying Party and the Indemnified Party shall, within the 30-day period beginning on the date of receipt by the Indemnified Party of such failure written objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or delayitems or amount or amounts, then such dispute shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. There shall be three arbitrators who shall be chosen jointly by the Parties, or, in the event the Parties cannot agree on the arbitrators, the arbitrators shall be selected by the American Arbitration Association. The arbitrators shall be attorneys (i) whose primary practice area comprises mergers and acquisitions, and (ii) with at least ten years of practice experience. Each Party will promptly furnish shall pay the fees of his or its own attorneys and the expenses of his or its witnesses, and all other fees and costs shall be borne equally by the Buyer on the one hand and Seller on the other; provided, however, the prevailing party shall be reimbursed for his or its reasonable attorney’s fees and costs. Judgment on any award rendered by the arbitrators may be entered in any court having jurisdiction and no Party shall object to the other Party copies entry of all papers and official documents received in respect such award.
(c) Promptly after the assertion by any third party of any Losses. The Indemnifying claim against any Indemnified Party will have that, in the right, exercisable by written notice to the judgment of such Indemnified Party, may result in the incurring by such Indemnified Party of Losses for which such Indemnified Party would be entitled to assume and control indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnifying Party a written notice describing in reasonable detail such claim and:
(i) in the event that the Indemnified Party is a Buyer Indemnified Party, such Indemnifying Party may, at its option, assist in the defense of the indemnification Buyer Indemnified Party against such claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an such Indemnifying Party shall have no right to assume or control the defense of such claim. A Buyer Indemnified Party will have the right to retain shall employ its own counselcounsel in any such action or claim and to control the defense thereof, at its own expense, except that but the fees and expenses of such counsel shall not be at the Indemnified Party’s counsel will be paid by expense of the Indemnifying Party if representation of such Party. The Buyer Indemnified Party by the counsel retained by the shall not be entitled to indemnification from any Indemnifying Party would be inappropriate due to actual for any settlement of any such action or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim effected without the prior written consent of the Indemnifying Party, and but if settled by the Buyer Indemnified Party with the consent of the Indemnifying Party, or if there be a final judgment adverse to the Buyer Indemnified Party in any such action, the Indemnifying Party will not settle shall indemnify and hold harmless each Buyer Indemnified Party from and against any loss or compromise liability by reason of such settlement or judgment subject to the limits specified in Section 8.2(d).
(ii) in the event that the Indemnified Party is one or more Seller or another Person entitled to indemnification from the Buyer under Section 8.2(b) (each, a “Seller Indemnified Party”), Buyer may at its option assume the defense of the Seller Indemnified Party against such claim (including the employment of counsel, who shall be reasonably satisfactory to such Seller Indemnified Party) and the payment of expenses. A Seller Indemnified Party shall have the right to employ separate counsel in any manner that would such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Buyer unless (x) the Buyer shall have an adverse effect on failed, within a reasonable time after having been notified by the Seller Indemnified Party’s interests Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (y) the employment of such counsel has been specifically authorized in writing by the Buyer or (z) the named parties to any such action (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The impleaded parties) include both such Seller Indemnified Party will reasonably cooperate with and the Indemnifying Buyer and such Seller Indemnified Party at the Indemnifying Party’s expense and will make shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Seller Indemnified Party which are not available to the Buyer, or available to the Seller Indemnifying Party all pertinent information under Party, but the control assertion of which would be adverse to the interests of the Indemnified Party, which information will be subject to Article 14 (Confidentiality)Buyer. The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will Buyer shall not be liable to indemnify Seller Indemnified Party for any settlement of any such action or other disposition of Losses by the Indemnified Party if such settlement is reached claim effected without the written consent of the Buyer, but if settled with the written consent of the Buyer, or if there be a final judgment adverse to the Seller Indemnified Party in any such action, the Buyer shall indemnify and hold harmless Seller Indemnified Party from and against any loss or liability by reason of such settlement or judgment subject to the limits specified in Section 8.2(e).
(d) Claims for Losses specified in any Certificate to which an Indemnifying Party pursuant shall not object in writing within thirty (30) days of receipt of such Certificate, claims for Losses covered by a memorandum of agreement of the nature described in Section 8.3(b), claims for Losses the validity and amount of which have been the subject of arbitral determination as described in Section 8.3(b) and claims for Losses the validity and amount of which shall have been the subject of a final judicial determination, or shall have been settled with the consent of the Indemnifying Party, as described in Section 8.3(c) are hereinafter referred to this Section 15.3 as “Agreed Claims.” Within thirty (Indemnification Procedure)30) business days of the determination of the amount of any Agreed Claims, the Indemnifying Party shall pay to the Indemnified Party an amount equal to the Agreed Claim by wire transfer in immediately available funds to the bank account or accounts designated in writing by the Indemnified Party not less than three (3) business days prior to such payment.
Appears in 1 contract
Indemnification Procedure. (i) Each Party, if seeking indemnification under this Article 15 (Indemnification) (Indemnitee agrees to give the “Indemnified Party”), will give [**] indemnifying party prompt written notice of any Losses or the claim discovery of a fact upon which such Indemnitee intends to base a request for indemnification under Sections 11.5, 11.6 or 11.7.
(ii) The indemnifying party and the Indemnitee shall each furnish promptly to the other Party (the “Indemnifying Party”); providedother, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers claims or demands and official documents received in respect of any Losses. The Indemnifying Party Indemnitee shall cooperate as reasonably requested by the indemnifying party in the defense against any Losses, subject to the right of the Indemnitee to retain its own counsel at its own expense.
(iii) With respect to any Losses relating solely to the payment of money damages and which will not result in the Indemnitee becoming subject to 53 injunctive or other relief or otherwise adversely affecting the business of the Indemnitee in any manner, and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the Indemnitee hereunder, the indemnifying party shall have the rightsole right to defend, exercisable by written notice settle or otherwise dispose of such Losses, on such terms as the Indemnifying party, in its sole discretion, shall deem appropriate.
(iv) With respect to Losses relating to all other matters as to which the Indemnified Partyindemnifying party shall have acknowledged in writing the obligation to indemnify the Indemnitee hereunder, the indemnifying party shall have the sole right to assume and control the defense of such matter, provided that the indemnification claim at its own expense with counsel selected indemnifying party shall obtain the written consent of the Indemnitee, which shall not be unreasonably withheld, prior to ceasing to defend, settling or otherwise disposing of any Losses if as a result thereof (i) the Indemnitee would become subject to injunctive or other equitable relief or any remedy other than the payment of money by the Indemnifying Party and reasonably acceptable to indemnifying party or (ii) the Indemnified Party; provided, however, that an Indemnified Party will business of the Indemnitee would be adversely affected.
(v) The Indemnitee shall have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume control the defense of all other matters, provided that the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will indemnifying party shall not be liable for any settlement or other disposition of Losses a Loss by the Indemnified Party if such settlement Indemnitee which is reached without the written consent of the Indemnifying Party pursuant indemnifying party, which consent shall not be unreasonably withheld. Except as provided above, the costs and expenses, including reasonable fees and disbursements of counsel, incurred by any Indemnitee in connection with any 54 claim shall be reimbursed on a calendar quarter basis by the indemnifying party, without prejudice to this Section 15.3 (Indemnification Procedure)the indemnifying party's right to contest the Indemnitee's right to indemnification and subject to refund in the event the indemnifying party is ultimately held not to be obligated to indemnify the Indemnitee.
Appears in 1 contract
Indemnification Procedure. Each The parties’ obligation to indemnify is subject to the conditions that the party with the obligation to indemnify (“Indemnifying Party, if seeking indemnification under this Article 15 ”) is given prompt notice of any such claims and is given primary control of and all reasonably requested assistance (Indemnificationat the other party’s cost) for the defense of such claims (with counsel reasonably satisfactory to the party being indemnified (“Indemnified Party”), will give [**] written notice of provided that the claim Indemnified Party shall under no circumstances be required to the other Party (the “Indemnifying Party”); providedadmit liability, however, and provided further that any failure or delay in providing such notice will notification shall not relieve the Indemnifying Party of its indemnification obligation, obligations hereunder except to the extent it is actually prejudiced by that the delay materially impairs its ability to indemnify. Without limiting the foregoing, the Indemnified Party may participate in the defense at its own expense and with its own counsel; provided that if the Indemnified Party reasonably concludes that the Indemnifying Party has conflicting interests or different defenses available with respect to such failure or delay. Each Party will promptly furnish claim, the reasonable fees and expenses of one counsel to the other Indemnified Party copies of all papers and official documents received in respect of any Lossesshall be borne by the Indemnifying Party. The Indemnifying Party will have shall not enter into or acquiesce to any settlement containing any admission of or stipulation to any guilt, fault, liability or wrongdoing on the right, exercisable by written notice to part of the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to or which would otherwise adversely affect the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of without the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will shall not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentialitywithheld). The Indemnifying Party will provide periodic updates to shall keep the Indemnified Party (and its counsel, if applicable) regarding its defense advised of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition status of Losses the claims and the defense thereof and shall consider in good faith the recommendations made by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)with respect thereto.
Appears in 1 contract
Sources: Software Services Agreement
Indemnification Procedure. Each Party, if seeking (a) In the case of any claim asserted by a third party against a party entitled to indemnification under this Article 15 (Indemnification) Agreement (the “"Indemnified Party”"), will give [**] written notice of shall be given by the claim Indemnified Party to the other Party indemnifying party (the “Indemnifying Party”); provided, however, that any failure or delay in providing "Indemnitor") three calendar days after such notice will not relieve the Indemnifying Indemnified Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect has actual knowledge of any Losses. The Indemnifying claim as to which indemnity may be sought, and the Indemnified Party will have shall permit the rightIndemnitor (at Indemnitor's expense) to assume the defense of any claim or any litigation resulting therefrom, exercisable by written notice provided that (i) the counsel for the Indemnitor who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then ii) the Indemnified Party may defend participate in such defense at such Indemnified Party's expense, and (iii) the indemnification claim but will have no obligation to do so. The omission by any Indemnified Party will to give notice as provided herein shall not settle or compromise relieve the Indemnitor of its indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights obligation under this Agreement or except to the scope or enforceability extent that such omission results in a failure of any Patents, Confidential Information, or other rights licensed actual notice to Licensee by ▇▇▇▇▇▇ hereunder), without the Indemnitor and the Indemnitor is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Indemnified Party, which consentthe Indemnitor, in the defense of any such claim or litigation, shall not consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each case (claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Indemnified Party shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the Indemnifying Indemnitor might be expected to affect adversely the Indemnified Party's tax liability or the ability of the Indemnified Party or Indemnified Partyany of its subsidiaries to conduct its business, as or that the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate may have available to it one or more defenses or counterclaims that are inconsistent with the Indemnifying Party at the Indemnifying Party’s expense and will make one or more of those that may be available to the Indemnifying Party all pertinent information under the control Indemnitor in respect of the Indemnified Partysuch claim or any litigation relating thereto, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (shall have the right at all times to take over and its counselassume control over the defense, if applicable) regarding its defense settlement, negotiations or litigation relating to any such claim at the sole cost of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by Indemnitor, provided that if the Indemnified Party if does so take over and assume control, the Indemnified Party shall not settle such settlement is reached claim or litigation without the written consent of the Indemnifying Indemnitor, such consent not to be unreasonably withheld. In the event that the Indemnitor does not accept the defense of any matter as above provided, the Indemnified Party pursuant shall have the full right to defend against any such claim or demand and shall be entitled to settle or agree to pay in full such claim or demand. Notwithstanding the foregoing, the Indemnitor shall still provide indemnification to the Indemnified Party. In any event, the Indemnitor and the Indemnified Party shall 11 15 cooperate in the defense of any claim or litigation subject to this Section 15.3 and the records of each shall be available to the other with respect to such defense.
(Indemnification Procedure)b) The obligations of the parties under this Section shall survive the execution and delivery of this Agreement for a period of three (3) years from the Closing Date.
Appears in 1 contract
Sources: Assignment Agreement (El Sitio Inc)
Indemnification Procedure. Each Party, if seeking All claims for indemnification under this Article 15 Sections 5.1 and 5.2 hereof shall be asserted and resolved as follows:
(Indemnificationa) In the event that any claim or demand for which a party (the “"Indemnifying Party") would be liable to another party (the "Indemnified Party”)") hereunder is asserted against an Indemnified Party by a third party, will give [**] written notice of the claim to the other Indemnified Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve shall with reasonable promptness notify the Indemnifying Party of its indemnification obligationsuch claim or demand (the "Claim Notice"), except specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent it is actually prejudiced by then feasible (which estimate shall not be conclusive of the final amount of such failure claim or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Lossesdemand). The Indemnifying Party will shall have 20 days from the receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the Indemnifying Party disputes the Indemnifying Party's liability to the Indemnified Party hereunder with respect to such claim or demand and (ii) if the Indemnifying Party does not dispute such liability, whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend against such claim or demand, provided that the Indemnified Party is hereby authorized (but not obligated) prior to and during the Notice Period to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party's interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party does not dispute the Indemnifying Party's obligation to indemnify hereunder and desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right, exercisable by written notice right to defend (with counsel reasonably satisfactory to the Indemnified Party) by appropriate proceedings, to assume and control the defense of the indemnification claim at its own expense with counsel selected which proceedings shall be promptly settled or prosecuted by the Indemnifying Party to a final conclusion; PROVIDED that, unless the Indemnified Party otherwise agrees in writing, the Indemnifying Party may not settle any matter (in whole or in part) unless such settlement includes a complete and reasonably acceptable to unconditional release of the Indemnified Party; provided, however, that an . If the Indemnified Party will have desires to participate in, but not control, any such defense or settlement the right to retain its own counsel, Indemnified Party may do so at its own sole cost and expense. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, except whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the Indemnified Party, without waiving any rights against the Indemnifying Party, may settle or defend against any such claim in the Indemnified Party's sole discretion and, if it is ultimately determined that the fees Indemnifying Party is responsible therefor under this Article 5, then the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment and all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including interest from the date such costs and expenses were incurred.
(b) If at any time, in the reasonable opinion of the Indemnified Party’s counsel will , notice of which shall be paid by given in writing to the Indemnifying Party, any such claim or demand seeks material prospective relief which could have a materially adverse effect on the businesses, operations, assets, properties, prospects or condition (financial or otherwise) of any Indemnified Party, the Indemnified Party shall have the right to control or assume (as the case may be) the defense of any such claim or demand and the amount of any judgment or settlement and the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of the Indemnifying Party if representation of such hereunder. If the Indemnified Party by the counsel retained by should elect to exercise such right, the Indemnifying Party would be inappropriate due shall have the right to actual participate in, but not control, the defense of such claim or potential differing interests between demand at the sole cost and expense of the Indemnifying Party.
(c) In the event the Indemnified Party and any other party represented should have a claim against the Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send a Claim Notice with respect to such counsel in such proceedingsclaim to the Indemnifying Party. If the Indemnifying Party does not assume notify the defense Indemnified Party within the Notice Period that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
(d) Nothing herein shall be deemed to prevent the Indemnified Party from making (and an Indemnified Party may make) a claim hereunder for potential or contingent claims or demands provided the Claim Notice sets forth the specific basis for any such potential or contingent claim or demand to the extent then feasible and the Indemnified Party has reasonable grounds to believe that such a claim or demand may be made. The Indemnified Party's failure to give reasonably prompt notice to the Indemnifying Party of any actual, threatened or possible claim or demand which may give rise to a right of indemnification claim as described hereunder shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to the Indemnified Party unless the failure to give such notice materially and adversely prejudiced the Indemnifying Party. The procedures set forth in this Section 15.3 (Indemnification Procedure), then Article 5 shall not apply to claims or demands which in the reasonable opinion of the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (be covered by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Threshold.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (DBT Online Inc)
Indemnification Procedure. Each Party(a) Promptly after receipt by an Indemnified Party of notice by a third party (including any governmental entity) of any complaint or the commencement of any audit, if seeking indemnification under this Article 15 investigation, action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for any Concurrent Losses or Company Losses (Indemnification) as the case may be), such Indemnified Party will notify Concurrent or the Company, as the case may be (the “"INDEMNIFYING PARTY"), in writing promptly following the Indemnified Party”), will give [**] written 's receipt of such complaint or of notice of the claim to the other Party (the “Indemnifying Party”)commencement of such audit, investigation, action or proceeding; provided, -------- however, that any the failure or delay to so notify the Indemnifying Party will relieve ------- the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in providing such notice will not relieve the forfeiture by the Indemnifying Party of its indemnification obligation, except rights and defenses otherwise available to the extent it is actually prejudiced by Indemnifying Party with respect to such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Lossesclaim. The Indemnifying Party will have the right, exercisable by upon written notice delivered to the Indemnified PartyParty within ten (10) days thereafter assuming full responsibility for any Concurrent Losses or Company Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume and control the defense of the indemnification claim at its own expense with counsel selected by such audit, investigation, action or proceeding. In any audit, investigation, action or proceeding for which the Indemnifying Party and reasonably acceptable to has assumed the Indemnified Party; provideddefense, however, that an the Indemnified Party will have the right to participate in such matter and to retain its own counsel, counsel at its own expense, except that the fees and expenses of the Indemnified Party’s counsel 's own expense. The Indemnifying Party will be paid by at all times use reasonable efforts to keep the Indemnified Party reasonably apprised of the status of the defense of any matter the defense of which the Indemnifying Party if representation of such has assumed, and the Indemnified Party by the counsel retained by shall cooperate in good faith with the Indemnifying Party would be inappropriate due with respect to actual or potential differing interests between the Indemnified Party and defense of any other party represented by such counsel in such proceedingsmatter. If In the event, however, that the Indemnifying Party does not declines or fails to assume the defense of the indemnification claim as described in this Section 15.3 audit, investigation, action or proceeding on the terms provided above within such ten (Indemnification Procedure)10)-day period, then such Indemnified Party may employ counsel reasonably satisfactory to the Indemnifying Party to represent or defend it in any such audit, investigation, action or proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred (provided that Indemnifying Party shall be obligated to pay for only one firm of counsel for the Indemnified Party may defend in any jurisdiction in any single audit, investigation, action or proceeding). In any audit, investigation, action or proceeding for which the indemnification claim but Indemnifying Party has declined or failed to assume the defense, the Indemnifying Party will have no obligation the right to do soparticipate in such matter and to retain its own counsel at the Indemnifying Party's own expense. The Indemnified Party will not at all times use reasonable efforts to keep the Indemnifying Party reasonably apprised of the status of the defense of any matter the defense of which the Indemnifying Party has declined or failed to assume and the Indemnifying Party shall cooperate in good faith with the Indemnified Party with respect to the defense of any such matter.
(b) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification claim is being sought hereunder without the prior written consent of the Indemnifying Party, and unless (i) the Indemnifying Party will not settle fails to assume and maintain the defense of such claim pursuant to Section 9.3(a) or (ii) such settlement, compromise or consent includes an unconditional release of the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability Indemnifying Party and its officers, directors, employees and affiliates from all liability arising out of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, Party (which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case consent may be), will not be unreasonably withheld withheld), settle or delayed. The compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party will reasonably cooperate and its officers, directors, employees and affiliates from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes with the Indemnifying business of the Indemnified Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control or any of the Indemnified Party's affiliates.
(c) In the event an Indemnified Party claims a right to payment pursuant to this Agreement, which information such Indemnified Party will be subject send written notice of such claim to Article 14 (Confidentiality)the appropriate Indemnifying Party. The Such notice will specify the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party will provide periodic updates establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, the Indemnifying Party will pay to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if immediately available funds in an amount equal to such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)claim as determined hereunder.
Appears in 1 contract
Sources: Share Purchase and Warrant Issuance Agreement (Concurrent Computer Corp/De)
Indemnification Procedure. Each Party, if seeking If a Party entitled to indemnification under this Article 15 (Indemnification) hereunder (the “"Indemnified Party”") becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an "Action"), will the Indemnified Party shall give [**] written notice of the claim to the other Party (the “"Indemnifying Party”); provided, however, that any failure or delay in providing ") prompt written notice of such Action. Such notice will not relieve shall (i) provide the Indemnifying Party of its basis on which indemnification obligation, except to the extent it is actually prejudiced being asserted and (ii) be accompanied by such failure or delay. Each Party will promptly furnish to the other Party copies of all relevant pleadings, demands and other papers related to the Action and official documents received in respect the possession of any Lossesthe Indemnified Party. The Indemnifying Party will shall have the right, exercisable by written a period of *** days after delivery of such notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by respond. If the Indemnifying Party and reasonably acceptable elects to defend the Indemnified Party; providedAction or does not respond within the requisite *** day period, however, that an Indemnified the Indemnifying Party will have shall be obligated to defend the right to retain its own counselAction, at its own expense, except that the fees and expenses of by counsel reasonably satisfactory to the Indemnified Party’s counsel will be paid by . The Indemnified Party shall cooperate reasonably, at the expense of the Indemnifying Party, with the Indemnifying Party if representation of such Indemnified Party by and its counsel in the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between defense and the Indemnified Party and any other party represented by shall have the right to participate fully, at its own expense, in the defense of such counsel in such proceedingsAction. If the Indemnifying Party does not assume fails to respond or responds within the required *** day period and declines or otherwise refuses to defend such Action, the Indemnified Party shall be free, without prejudice to any of the Indemnified Party's rights hereunder, to compromise or defend (and control the defense of) such Action. In such case, the Indemnifying Party shall cooperate reasonably, at its own expense, with the Indemnified Party and its counsel in the defense against such Action, and the Indemnifying Party shall have the right to participate fully, at its own expense, in the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do sosuch Action. The Indemnified Party will not settle Any compromise or compromise the indemnification claim without settlement of an Action shall require the prior written consent of the Indemnifying Partyboth Parties hereunder, and the Indemnifying Party will such consent not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).
Appears in 1 contract
Sources: NFL Interactive Media Rights Agreement (Sportsline Com Inc)
Indemnification Procedure. Each Party, if seeking 13.2.1 A Party believing that it or its Indemnitees are entitled to indemnification under this Article 15 Section 13.1 (Indemnification) (the an “Indemnified Party”), will ) shall give [**] prompt written notice of the claim notification to the other Party (the “Indemnifying Party”); provided) of the commencement of any Claim for which indemnification may be sought or, if earlier, upon the assertion of any such Claim by a Third Party (it being understood and agreed, however, that any the failure or delay by an Indemnified Party to give notice of a Third Party Claim as provided in providing such notice will this Section 13.2 shall not relieve the Indemnifying Party of its indemnification obligation, obligation under this Agreement except and only to the extent it that such Indemnifying Party is actually materially prejudiced by as a result of such failure or delayto give notice). Each Party will promptly furnish Subject to any written agreement by the Parties to the other Party copies contrary, within [ * ] after delivery of all papers and official documents received in respect of any Losses. The such notification, the Indemnifying Party will have the rightmay, exercisable by upon written notice thereof to the Indemnified Party, to assume and control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If a Party believes that a Claim presented to it for indemnification claim is one as to which the Party seeking indemnification is not entitled to indemnification under Section 13.1, it shall so notify the Party seeking indemnification.
13.2.2 If the Indemnifying Party elects to assume the defense of such Claim, the Indemnified Party may participate in such defense at its own expense with counsel selected by expense; provided, that, if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and reasonably acceptable to the Indemnified Party; providedParty have conflicting interests with respect to such Claim, however, that an Indemnified the Indemnifying Party will have shall be responsible for the right to retain its own counsel, at its own expense, except that the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith.
13.2.3 In any event, the Indemnifying Party shall keep the other Party reasonably apprised of the status of such Claim and the defense thereof (including by providing copies of pleadings and such other documents, information, and correspondence reasonably requested by the Indemnified Party’s counsel will be paid ) and shall consider in good faith recommendations made by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. with respect thereto.
13.2.4 The Indemnified Party will shall not settle or compromise the indemnification claim agree to any settlement of such Claim without the prior written consent Party Written Consent of the Indemnifying Party, and the . The Indemnifying Party will shall not settle agree to any settlement of such Claim or compromise consent to any judgment in respect thereof that does not include a complete and unconditional release of the indemnification claim in Indemnified Party from all liability with respect thereto or that imposes any manner that would have an adverse effect liability or obligation on the Indemnified Party’s interests (including any rights under this Agreement Party or adversely affects the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), Indemnified Party without the prior written consent Party Written Consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will shall not be unreasonably withheld withheld, conditioned or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).
Appears in 1 contract
Sources: Joint Commercialization Agreement (Seattle Genetics Inc /Wa)
Indemnification Procedure. (i) Each Party, if seeking indemnification under this Article 15 (Indemnification) (Indemnitee agrees to give the “Indemnified Party”), will give [**] indemnifying party prompt written notice of any Losses or the claim discovery of a fact upon which such Indemnitee intends to base a request for indemnification under Section 4.5 or 4.6.
(ii) The indemnifying party and the Indemnitee shall each furnish promptly to the other Party (the “Indemnifying Party”); providedother, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers claims or demands and official documents received in respect of any Losses. The Indemnifying Party Indemnitee shall cooperate as reasonably requested by the indemnifying party in the defense against any Losses, subject to the right of the Indemnitee to retain its own counsel at its own expense.
(iii) With respect to any Losses relating solely to the payment of money damages and which will not result in the Indemnitee becoming subject to injunctive or other relief or otherwise adversely affecting the business of the Indemnitee in any manner, and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the Indemnitee hereunder, the indemnifying party shall have the rightsole right to defend, exercisable by written notice settle or otherwise dispose of such Losses, on such terms as the Indemnifying party, in its sole discretion, shall deem appropriate.
(iv) With respect to Losses relating to all other matters as to which the Indemnified Partyindemnifying party shall have acknowledged in writing the obligation to indemnify the Indemnitee hereunder, the indemnifying party shall have the sole right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; providedsuch matter, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except provided that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other indemnifying party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without shall obtain the written consent of the Indemnifying Party pursuant Indemnitee, which shall not be unreasonably withheld, prior to this Section 15.3 ceasing to defend, settling or otherwise disposing of any Losses if as a result thereof (Indemnification Procedure).i) the Indemnitee would become subject to injunctive or other equitable relief or
Appears in 1 contract
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 8.1 (the “Indemnified Party”), will ) shall give [**] written notice of the claim to the other Party Party(ies) from whom indemnification is sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 8.1(a), such notice shall be given to the Sole Member) of any third-party claim which may give rise to any indemnity obligation under this Section 8.1, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within ten (10) days of receipt of the Indemnified Party’s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its Party’s indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually materially prejudiced by such failure or delayfailure. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to If the Indemnified Party, Party desires to assume and control the participate in any such defense of the indemnification claim at its own expense with counsel selected assumed by the Indemnifying Party Party, it may do so at its sole cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an the Indemnified Party will have be entitled to participate in any such defense with separate counsel at the right expense of the Indemnifying Party if, in the reasonable judgment of counsel to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume the any such defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)or fails to diligently pursue any such defense, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on be liable for all reasonable costs and expenses incurred by the Indemnified Party’s interests (Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including any rights under this Agreement or reasonable fees and disbursements of counsel. The Parties agree to cooperate with each other in connection with the scope or enforceability defense of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, which consentsettle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in each case (by the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party, as the case may be), will not be unreasonably withheld or delayedParty and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Partynot, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party, which will not be unreasonably withheld, delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party pursuant is not disputed by the Indemnifying Party within thirty (30) days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a governmental entity, by a settlement of the indemnification claim in accordance with Section 8.1(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (any of the foregoing, a “Resolution”), then (A) in the case of indemnification under Section 8.1(b), Parent will pay to this the Member Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such Member Indemnified Party as set forth in such Resolution, or (B) in the case of indemnification under Section 15.3 (Indemnification Procedure8.1(a), Parent will deliver evidence of such Resolution to the Sole Member, whereupon the Sole Member will deliver to the Parent Indemnified Party an amount equal to the Losses of such Parent Indemnified Party as set forth in such Resolution. At the election of the Sole Member, the amount to be delivered to the Parent Indemnified Party in accordance with the immediately preceding sentence may be deducted from the Earn-Out Payments, if any. Except as otherwise specifically provided in Section 8.1(d), the depletion of the Earn-Out Payments, if any, will not serve as a bar to recovery by the Parent Indemnified Parties from the Sole Member of any indemnifiable Losses, and the Parent Indemnified Parties will be entitled to look directly to the Sole Member for any Losses in excess of the such amounts, and such Losses will be the obligations of the Sole Member as provided in Section 8.1(a) and will be paid to the applicable Parent Indemnified Party promptly following such Resolution.
Appears in 1 contract
Indemnification Procedure. Each An Indemnified Party shall promptly notify the Party from whom it is seeking indemnification ("Indemnifying Party, if seeking ") upon becoming aware of an Indemnified Claim with respect to which the Indemnifying Party is obligated to provide indemnification under this Article 15 (Indemnification) (Section 10. The Indemnifying Party shall promptly assume control of the “defense and investigation of the Indemnified Claim, with counsel of its own choosing, and the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection therewith, in each case at the Indemnifying Party's sole cost and expense. The Indemnified Party may participate in the defense of such Indemnified Claim, with counsel of its own choosing and at its own cost and expense. The Indemnifying Party shall not settle any Indemnified Claim on any terms or in any manner that adversely affects the rights of any Indemnified Party without the Indemnified Party”'s prior written consent (which consent may not be unreasonably withheld, conditioned, or delayed), will give [**] written notice . If the Indemnifying Party fails or refuses to assume control of the claim defense of an Indemnified Claim, the Indemnified Party may, but is not obligated to, defend against such Indemnified Claim, including settling such Indemnified Claim after giving notice to the other Party (the “Indemnifying Party”); provided, however, that in each case in such manner and on such terms as the Indemnified Party may deem appropriate. Neither the Indemnified Party's failure to perform any failure obligation under this Section 10.3 nor any act or delay omission of the Indemnified Party in providing such notice the defense or settlement of any Indemnified Claim will not relieve the Indemnifying Party of its indemnification obligationobligations under this Section 10, including with respect to any Losses, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by that the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, can demonstrate that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim it has been materially prejudiced as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)a result thereof.
Appears in 1 contract
Sources: Collaboration and License Agreement (GreenLight Biosciences Holdings, PBC)
Indemnification Procedure. Each (a) The party or parties being indemnified are referred to herein as the "INDEMNIFIED PARTY" and the indemnifying party is referred to herein as the "INDEMNIFYING PARTY." In the event that any party shall incur or suffer any Losses in respect of which indemnification may be sought by such party hereunder, the Indemnified Party shall assert a claim for indemnification by written notice ("NOTICE") to the Indemnifying Party stating the nature and basis of such claim. In the case of Losses arising by reason of any third party claim, the Notice shall be given within thirty (30) days of the filing or other written assertion of any such claim against the Indemnified Party, if seeking indemnification under this Article 15 (Indemnification) (but the “Indemnified Party”), will give [**] written notice failure of the claim Indemnified Party to give the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing Notice within such notice will time period shall not relieve the Indemnifying Party of its indemnification obligationany liability that the Indemnifying Party may have to the Indemnified Party, except to the extent it is actually that the Indemnifying Party demonstrates that the defense of such action has been prejudiced by the Indemnified Party's failure to give such failure notice.
(b) In the case of third party claims for which indemnification is sought, the Indemnifying Party shall have the option (i) to conduct any proceedings or delaynegotiations in connection therewith, (ii) to take all other steps to settle or defend any such claim (PROVIDED; that the Indemnifying Party shall not settle any such claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed)), and (iii) to employ counsel to contest any such claim or liability in the name of the Indemnified Party or otherwise. Each In any event, the Indemnified Party will promptly furnish shall be entitled to the other Party copies of all papers participate at its own expense and official documents received by its own counsel in respect of any Lossesproceedings relating to any third party claim. The Indemnifying Party will have shall, within twenty (20) days of receipt of the rightNotice, exercisable by written notice to notify the Indemnified Party, Party of its intention to assume and control the defense of such claim. If (i) the indemnification Indemnifying Party shall decline to assume the defense of any such claim, (ii) the Indemnifying Party shall fail to notify the Indemnified Party within twenty (20) days after receipt of the Notice of the Indemnifying Party's election to defend such claim at its own expense with counsel selected by or (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or in addition to those available to the Indemnifying Party or a conflict exists between the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will (in which case the Indemnifying Party shall not have the right to retain its own counsel, at its own expense, except that direct the fees and expenses defense of such action on behalf of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between ), the Indemnified Party shall defend against such claim and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification such claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will may not settle or compromise challenge the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability reasonableness of any Patentssuch settlement. The expenses of all proceedings, Confidential Information, contests or other rights licensed lawsuits in respect of such claims shall be borne and paid by the Indemnifying Party (up to Licensee by ▇▇▇▇▇▇ hereunder), without a limit of one counsel in the prior written consent case of attorneys' fees) and the Indemnifying Party shall pay the Indemnified Party, in immediately available funds, as such Losses are incurred upon receipt of supporting documentation thereof. Regardless of which consentparty shall assume the defense of the claim, the parties agree to cooperate fully with one another in each case (connection therewith. In the event that any Losses incurred by the Indemnified Party do not involve payment by the Indemnified Party of a third party claim, then, the Indemnifying Party shall pay, within ten (10) days after agreement on the amount of Losses or Indemnified Partythe occurrence of a final non-appealable determination of such amount payable, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject in immediately available funds, the amount of such Losses. Anything in this SECTION 5.3 to Article 14 (Confidentiality). The the contrary notwithstanding, the Indemnifying Party will provide periodic updates shall not, without the Indemnified Party's prior written consent, settle or compromise any claim or consent to entry of any judgment in respect thereof which imposes any future obligation on the Indemnified Party or which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party Party, a release from all liability in respect of such claim.
(and its counsel, if applicablec) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will remedies provided for in this ARTICLE V shall not be liable for exclusive of any settlement other rights or other disposition of Losses by remedies available to one party against the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)other, either at law or in equity.
Appears in 1 contract
Sources: Financial Warranty Agreement (Pioneer Protected Principal Plus Fund)
Indemnification Procedure. Each Party, if (a) Any Indemnified Party seeking indemnification under this Article 15 Agreement shall, within the period provided in Section 8.1, give the applicable indemnifying Party written notice describing in reasonable detail the facts giving rise to any claims for indemnification hereunder (Indemnificationa “Claim Notice”) and shall include in the Claim Notice (if then known) the “amount or method of computation of the amount of such claim and a reference to the provision of this Agreement or any agreement, certificate or instrument delivered pursuant to this Agreement upon which such claim is based; provided that a Claim Notice in respect of any action by or against a third party as to which indemnification will be sought shall be given promptly after the Indemnified Party”), will give [**] Party receives written notice of the commencement of such action or suit. The failure of an Indemnified Party to provide a Claim Notice with respect to a third-party claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will shall not relieve the Indemnifying indemnifying Party of its indemnification obligationany liability, except to the extent it the indemnifying Party demonstrates that the defense of such third-party claim is actually and materially prejudiced by such failure or delay. Each Party will promptly furnish to as result thereof.
(b) From and after the other Party copies receipt of all papers and official documents received the Claim Notice in respect of a third-party claim (excluding any Losses. The Indemnifying claims relating to Taxes which shall be controlled in accordance with Section 6.7(d)), the indemnifying Party will shall have the right, exercisable at its own cost, to assume and conduct the defense in its own name or in the names of the Indemnified Parties if the indemnifying Party has acknowledged in writing its obligation to indemnify the Indemnified Parties in respect of such third-party claim. The Indemnified Party shall make available all information and assistance reasonably available and necessary for the defense of such third-party claim as the indemnifying Party may reasonably request and shall cooperate with the indemnifying Party in such defense. Any Indemnified Parties shall have the right to employ separate counsel in any such third-party claim and/or to participate in the defense thereof, but the fees and expenses of such counsel shall not be included as part of any Loss incurred by written notice the Indemnified Party and shall not be payable by the indemnifying Party; provided that the indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have control over, at the indemnifying Party’s expense, the defense of any third-party claim (i) if the indemnifying Party shall have failed to acknowledge its indemnification obligations hereunder, (ii) if the indemnifying Party fails to employ counsel with requisite experience and resources with regard to the defense of such third party claim, (iii) if the Indemnified Party, based on advice of reputable counsel with appropriate experience to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable shall have concluded that there are defenses available to the Indemnified Party that are different from or additional to those available to the indemnifying Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of (iv) if the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between shall have advised the Indemnified Party and any that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel, (v) to the extent the third-party claim alleges criminal wrongdoing or seeks an order, injunction or other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then equitable relief against the Indemnified Party may defend which, if successful, would materially adversely affect the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Partybusiness, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patentsoperations, Confidential Informationassets, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent financial condition of the Indemnified Party, which consent, or (vi) if the third-party claim seeks damages in each case (by excess of the Indemnifying Party or Indemnified Party, as the case may beapplicable limitation of liability set forth in Section 8.4(e), will not be unreasonably withheld or delayed. The Indemnified Party will party or parties conducting the defense:
(i) shall keep the other parties reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available informed as to the Indemnifying status of such matter and shall promptly send copies of all pleadings; and
(ii) shall not enter into any settlement, compromise or consent to judgment without the prior consent of the other Party; provided that the indemnifying Party all pertinent information under shall be entitled to settle, compromise or consent to a judgment without the control consent of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to that only imposes monetary obligations that are paid by the indemnifying Party and contains a release of the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)from all liability thereunder.
Appears in 1 contract
Indemnification Procedure. Each Party, if The indemnification obligations under this Agreement will be subject to the following procedures:
10.3.1 Either party seeking indemnification under this Article 15 (Indemnification) Agreement (the “"Indemnified Party”") shall give notice to the party required to provide indemnification hereunder (the "Indemnifying Party") promptly after the Indemnified Party has actual knowledge of any claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party), will give [**] written notice if it acknowledges in writing its liability with respect to defense costs, to assume the defense of the any claim to the other Party (the “Indemnifying Party”)or litigation resulting therefrom; provided, however, that any failure or delay in providing that: (i) no such notice will shall be required with respect to the Actions listed on Schedule 4.9; (ii) the Indemnified Party may participate in such defense, represented by counsel of the Indemnified Party's own choosing, but only at the Indemnified Party's own cost and expense, except with respect to any claim or litigation by or with a Governmental Entity involving or relating to any Tax matter; and (iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligation, obligations hereunder except to the extent it is actually prejudiced by that such omission results in a failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written actual notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation is actually prejudiced or damaged as a result of such Indemnified Party by the counsel retained by the failure to give notice.
10.3.2 The Indemnifying Party would be inappropriate due to actual or potential differing interests between shall not, except with the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party consent to entry of any judgment or Indemnified Party, as the case may be), will not be unreasonably withheld administrative order or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for enter into any settlement or other disposition of Losses by a compromise that would bind the Indemnified Party if such judgment, administrative order, settlement is reached or compromise (i) does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability with respect to such claim or litigation or (ii) would require any admission of wrongdoing on the part of the Indemnified Party.
10.3.3 In the event that the Indemnifying Party does not acknowledge in writing its indemnification obligation hereunder and accept the defense of any matter as above provided within ten (10) Business Days following the receipt of written notice of the Indemnified Party of any such matter, the Indemnified Party, without waiving any rights under this Article X, shall have the written consent full right to defend against any such claim or litigation at the reasonable expense of the Indemnifying Party.
10.3.4 The amount of any indemnification payable by the Indemnifying Party pursuant to the Indemnified Party under this Section 15.3 Article X will be reduced by (Indemnification Procedure)i) any insurance proceeds received by the Indemnified Party in connection with or related to the Loss or the circumstances giving rise to the Loss, (ii) any Tax credit, deduction, reduction or other comparable benefit accruing to or arising in favor of the Indemnified Party in accordance with GAAP that results from the Loss, and (iii) in the event Buyer is the Indemnified Party, the amount of any accrual or other liability (contingent or otherwise) reflected as a Current Liability on the Final Closing Balance Sheet and/or the Final Subsequent Closing Balance Sheet that relates to the Loss or the circumstances giving rise to the Loss.
Appears in 1 contract
Sources: Acquisition Agreement (Childrens Place Retail Stores Inc)
Indemnification Procedure. In the event either Party learns of any claim, liability, demand or cause of action relating to this Agreement or the performance hereunder, which said Party shall determine, in its sole discretion, that the other Party may be liable therefor, said Party shall promptly notify the other Party. If indemnity is Exhibit 10.5 Confidential Treatment Requested by Hi-Crush Partners LP required by any of the terms of this Agreement, the indemnifying Party shall have the right to control all litigation and shall defend the other and pay all settlements, judgments, costs, and expenses (including without limitation court costs and reasonable attorneys’ fees). Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Indemnified Party”)requested, will give [**] written notice of the claim agrees to cooperate with the other in any defense, and the indemnifying Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to shall reimburse the other Party copies of for all papers and official documents received reasonable expenses incurred in respect of any Lossesconnection therewith. The Indemnifying indemnified Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will shall have the right to retain have counsel of its own counsel, choosing and at its own expensesole expense participate in any such litigation. Notwithstanding the foregoing, except that the fees and expenses however, neither Party shall effect settlement of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification any such claim or proceedings without having obtained the prior written consent of the Indemnifying other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided that the indemnifying Party may settle or compromise any such claim if the settlement or compromise (a) requires solely the payment of money damages by the indemnifying Party, and (b) includes as an unconditional term thereof the Indemnifying release by the claimant or the plaintiff of the indemnified Party will from all liability in respect of such claim. If the indemnified Party does not settle or compromise consent to a settlement which the indemnification claim in any manner that would have an adverse effect on indemnifying Party is willing to accept, then the Indemnified indemnifying Party’s interests (including liability shall be limited to the amount for which the claim could have been settled provided such settlement does not require the indemnified Party to forego any property rights under this Agreement or other than the scope or enforceability amount of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent payment of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)proposed settlement.
Appears in 1 contract
Sources: Purchase Agreement
Indemnification Procedure. Each PartyIf there occurs an event which any Buyer Indemnified Party asserts is an indemnifiable event pursuant to this Section 9, if seeking indemnification the Buyer Indemnified Party shall promptly notify in writing the Sellers of the occurrence of such event; provided, however, that the failure of the Buyer Indemnified Party to give the Sellers timely notice as provided herein shall not relieve Sellers of Sellers’ obligations under this Article 15 (Indemnification) (Section 9, except to the “extent Sellers are actually and materially prejudiced thereby. If the Buyer Indemnified Party”), will Party shall give [**] the Sellers prompt written notice of such Third Party Claim or the claim commencement of such action, suit or proceeding, and upon written request by the Buyer, the Sellers shall, at Sellers’ election at any time, promptly defend or assume the defense and continue the defense of such Third Party Claim at the Sellers’ expense; provided, that the Sellers shall not consent to the other entry of any judgment or enter into any settlement or compromise without the written consent of the Buyer Indemnified Party (the “Indemnifying Party”such consent not to be unreasonably withheld); provided, however, that any failure or delay in providing no such notice consent shall be required as long as it is solely a monetary settlement (that will be paid entirely by the Sellers) that provides a full release of the Buyer Indemnified Party with respect to such matter and does not contain an admission of liability on the part of the Buyer Indemnified Party and will not relieve have an ongoing adverse affect on the Indemnifying Party business or operations of its indemnification the Buyer Indemnified Party. If the Sellers elect not to defend, fail to undertake or continue such defense, the Buyer shall have the right (but not the obligation) to make and continue such defense as it considers appropriate, except and the expenses and costs thereof (including but not limited to reasonable attorneys’ fees, out-of-pocket costs and the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to costs of an appeal and bond thereof, together with the other Party copies of all papers and official documents received in respect amounts of any Lossesjudgment rendered against the Buyer) shall be paid by the Sellers. The Indemnifying Party will have Notwithstanding the right, exercisable election by written notice to the Indemnified Party, Sellers to assume and control any defense, the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will Buyer shall have the right to retain its own counsel, participate in such defense at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure).
Appears in 1 contract
Sources: Asset Purchase Agreement (Capstone Dental Pubco, Inc.)
Indemnification Procedure. Each Party, if seeking indemnification If any indemnified party under this Article 15 (Indemnification) Clause 14 (the “Indemnified Party”), will give [**] written ) receives notice of any claim or the claim commencement of any action or proceeding with respect to the other Party which any party is obligated to provide indemnification pursuant to this Clause 14 (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve Indemnified Party shall promptly notify the Indemnifying Party Party, in writing, of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Lossesclaim. The Indemnifying Party will shall have the righttwenty (20) business days after said notice is given to elect, exercisable by written notice given to such Indemnifying Party, to undertake, conduct and control, through counsel of their own choosing (subject to the consent of such Indemnified Party, such consent not to assume be unreasonably withheld) and control at their sole risk and expense, the good faith settlement or defense of the indemnification claim at its own expense such claim, and such Indemnified Party shall cooperate with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Partyin connection therewith; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between : (a) all settlements require prior reasonable consultation with the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consentconsent shall not be unreasonably withheld, and (b) the Indemnified Party shall be entitled to participate in each case such settlement or defense through counsel chosen by the Indemnified Party (provided that the fees and expenses of such counsel shall be borne by the Indemnified Party). So long as the Indemnifying Party or Indemnified Partyis contesting any such claim in good faith, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate shall not pay or settle any such claim. If the Indemnifying Party does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the Indemnifying Party fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnified Party shall have the right to contest, settle or compromise (provided, that, all settlements or compromises require the prior reasonable consultation with the Indemnifying Party at and the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party pursuant Party, which consent shall not be unreasonably withheld, conditioned or delayed) the claim at their exclusive discretion, at the risk and expense of the Indemnifying Party. Regardless of which party is controlling the defense of any claim, each party shall act in good faith and shall provide reasonable documents and cooperation to this Section 15.3 (Indemnification Procedure)the party handling the defense.
Appears in 1 contract
Sources: License Agreement (Retrophin, Inc.)
Indemnification Procedure. Each Party(a) Promptly following receipt by an Indemnified Party of notice by a third party (including any Governmental Entity) of any complaint or the commencement of any audit, if seeking indemnification under this Article 15 investigation, action or proceeding (Indemnificationa "Third-Party Claim") (the “with respect to which such Indemnified Party”), will give [**] written notice of the claim Party may be entitled to receive payment from the other Party for any Purchaser Losses or any Seller Losses (as the case may be), such Indemnified Party shall notify Purchaser or Parent, as the case may be (the “"Indemnifying Party”"), of the Indemnified Party's receipt of such notice; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder with respect to a Third-Party Claim except to the extent that the Indemnifying Party demonstrates that the defense of such Third-Party Claim has been actually prejudiced by the Indemnified Party's failure to give such notice. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third-Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20-day period, then any Purchaser Losses or any Seller Losses (as the case may be), shall include the reasonable fees and disbursements of counsel for the Indemnified Party as incurred; provided, however, that any failure Purchaser Losses or delay any Seller Losses (as the case may be) shall not include the fees and disbursements of more than one counsel for all Indemnified Parties in providing such notice will not relieve any jurisdiction with respect to any single Third-Party Claim. In any Third-Party Claim for which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its indemnification obligation, except to the extent it is actually prejudiced by own counsel at such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any LossesParty's own expense. The Indemnifying Party will have the right, exercisable by written notice to or the Indemnified Party, Party (as the case may be) shall at all times use reasonable efforts to assume and control keep the Indemnifying Party or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of the indemnification claim at its own expense any Third-Party Claim that it is maintaining and to cooperate in good faith with counsel selected by the Indemnifying Party and reasonably acceptable each other with respect to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 any such matter.
(Indemnification Procedure), then the b) No Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification claim is being sought hereunder without the prior written consent of the Indemnifying Party, and unless (i) the Indemnifying Party will not settle fails to assume and maintain the defense of such claim pursuant to Section 7.3(a) or (ii) such settlement, compromise or consent includes an unconditional release of the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which consentindemnification is being sought hereunder unless (x) such settlement, compromise or consent includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in each case (by any manner affects, restrains or interferes with the Indemnifying business of the Indemnified Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control any of the Indemnified Party's Affiliates.
(c) In the event an Indemnified Party claims a right to payment pursuant hereto (other than pursuant to Section 7.3(a)), which information will be subject such Indemnified Party shall send written notice of such claim to Article 14 (Confidentiality)the appropriate Indemnifying Party. Such notice shall specify the basis for such claim. The failure by any Indemnified Party so to notify the Indemnifying Party will provide periodic updates shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 7.3(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 7.4. In the event the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party (and its counselunder this Article or the amount thereof, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses claim specified by the Indemnified Party if in such settlement is reached without the written consent notice shall be conclusively deemed a liability of the Indemnifying Party pursuant under this Article VII, and the Indemnifying Party shall pay the amount of such liability to this Section 15.3 the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (Indemnification Procedure)or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has timely disputed its liability with respect to such claim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five Business Days following the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking 12.3.1. In order for an Indemnified Party to be entitled to any indemnification provided for under this Article 15 (Indemnification) (Agreement, such Indemnified Party will, within a reasonable period of time following the “Indemnified Party”), will give [**] written notice discovery of the claim matters giving rise to any Losses, notify the other Party indemnifying party under this Section 12.3 (the “Indemnifying Party”)) in writing of its claim for indemnification for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided, however, that any failure or delay in providing to give such notice notification will not relieve affect the Indemnifying Party of its indemnification obligationprovided hereunder, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the rightIndemnified Party will deliver to the Indemnifying Party, exercisable by written notice to within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses.
12.3.2. If the indemnification sought pursuant hereto involves a claim made by a Third Party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party will be entitled to assume and control the defense of the indemnification claim such Third Party Claim at its own expense with counsel selected by the Indemnifying Party. Should the Indemnifying Party and reasonably acceptable so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party; providedParty for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, however, that an the Indemnified Party will have the right to retain its own participate in the defense thereof and to employ counsel, at its own expenseexpense (which expense shall not constitute a Loss), except separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party’s counsel will be paid by Party for any period during which the Indemnifying Party if representation of such Indemnified Party by has not assumed the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between defense thereof (other than during any period in which the Indemnified Party and any other party represented by such counsel in such proceedingswill have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party does not assume chooses to defend or prosecute a Third Party Claim, all of the parties hereto will cooperate in the defense of or prosecution thereof. Such cooperation will include the indemnification claim as described in this Section 15.3 retention and (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without obtain the prior written consent of the Indemnified PartyParty (not to be unreasonably withheld) before entering into any settlement, which consentcompromise or discharge of such Third Party Claim if (i) such settlement, in each case compromise or discharge does not relate solely to monetary damages, (by ii) such settlement, compromise or discharge does not expressly unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim and (iii) the Indemnifying Party is not directly paying the full amount of the Losses in connection with such Third Party Claim. Whether or Indemnified Partynot the Indemnifying Party will have assumed the defense of a Third Party Claim, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate not admit any liability with the Indemnifying respect to, or settle, compromise or discharge, such Third Party at Claim without the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the prior written consent of the Indemnifying Party pursuant (not to this Section 15.3 (Indemnification Procedurebe unreasonably withheld).
Appears in 1 contract
Sources: Agreement on Profit Based Settlement and Enoxaparin Transfer (Momenta Pharmaceuticals Inc)
Indemnification Procedure. Each Party, if Upon receipt by the Party seeking indemnification under this Article 15 hereunder (Indemnification) (the an “Indemnified Party”)) of notice of any action, will suit, proceeding, claim, demand or assessment against such Indemnified Party which might give [**] rise to Damages, the Indemnified Party shall give prompt written notice of the claim thereof to the other Party from which indemnification is sought (the “Indemnifying Party”); provided) indicating the nature of the claim and the basis therefore, however, provided that any the failure or delay in providing to give such prompt notice will shall not relieve the Indemnifying Party of its indemnification obligation, obligations hereunder except to the extent it is actually prejudiced by such failure the Indemnifying Party or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect defense of any Lossessuch claim is materially prejudiced thereby. The Indemnifying Party will shall have the right, exercisable at its option, to assume the defense of, at its own Cost and by written notice to its own counsel, any such claim involving the asserted liability of the Indemnified Party. If any Indemnifying Party shall undertake to compromise or defend any such asserted liability, it shall promptly notify the Indemnified Party of its intention to assume do so, and control the defense of the indemnification claim at its own expense Indemnified Party shall agree to cooperate fully with counsel selected by the Indemnifying Party and reasonably acceptable to its counsel in the Indemnified Partycompromise of, or defense against, any such asserted liability; provided, however, that an the Indemnifying Party shall not, as part of any settlement or other compromise, admit to liability for which the Indemnifying Party is not fully indemnifying the Indemnified Party will have the right or agree to retain its own counsel, at its own expense, except that the fees and expenses an injunction with respect to activities of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (. Notwithstanding an election by the Indemnifying Party or Indemnified Partyto assume the defense of any claim as set forth above, as the case may be), will not be unreasonably withheld or delayed. The such Indemnified Party will reasonably cooperate with shall have the right (at its own Cost if the Indemnifying Party at has elected to assume such defense) to employ separate counsel and to participate in the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)claim.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking party entitled to indemnification under this Article 15 (Indemnification) Section 4 (the “"Indemnified Party”") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided the Indemnifying Party acknowledges its obligations to indemnify the Indemnified Party with respect to the claim and provided further that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), will and the Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will as provided herein shall not relieve the Indemnifying Party of its indemnification obligation, obligations under this Section 4 except to the extent it that the failure to give such notice is actually prejudiced by materially prejudicial to an Indemnifying Party's ability to defend such failure action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or delayseparate and different defenses but shall bear the expense of such defense nevertheless. Each Party will promptly furnish to No Indemnifying Party, in the other Party copies of all papers and official documents received in respect defense of any Losses. The Indemnifying Party will have such claim or litigation, shall, except with the right, exercisable by written notice to the consent of each Indemnified Party, consent to assume and control entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the defense of the indemnification claim at its own expense with counsel selected giving by the Indemnifying Party and reasonably acceptable claimant or plaintiff to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due of a release from all liability in respect to actual such claim or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedingslitigation. If the Indemnifying Party does not assume the defense of the indemnification any claim as described in this Section 15.3 (Indemnification Procedure)or proceeding resulting therefrom, then the Indemnified Party may defend the indemnification against such claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on proceeding as the Indemnified Party’s interests (including any rights under this Agreement Part may deem appropriate and may settle such claim or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, proceeding in each case (by the Indemnifying Party or Indemnified Party, such manner as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and may deem appropriate, all without prejudice to its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant right to this Section 15.3 (Indemnification Procedure)indemnification hereunder.
Appears in 1 contract
Indemnification Procedure. (a) Each Party, if seeking party entitled to indemnification under this Article 15 (Indemnification) 6 (the “Indemnified Party”), ) will give [**] written notice of the claim to the other Party party required to provide indemnification (the “Indemnifying Party”) promptly after that Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and, if the Indemnifying Party acknowledges its liability hereunder, will permit the Indemnifying Party to assume the defense of any claim or any litigation, provided that counsel for the Indemnifying Party, who will conduct the defense of the claim or litigation, will be approved by the Indemnified Party (whose approval will not be unreasonably withheld); provided, howeverand the Indemnified Party may participate in the defense at that party’s expense, and provided further that the failure of any failure or delay Indemnified Party to give notice as provided in providing such notice this Agreement will not relieve the Indemnifying Party of its indemnification obligationobligations under this Agreement unless the failure to give the notice is materially prejudicial to an Indemnifying Party’s ability ‘to defend that action and provided further, except to that the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have not assume the rightdefense for matters in which there is, exercisable by written notice in the reasonable opinion of outside counsel to the Indemnified Party, to assume a conflict of interest or separate and control different defenses. No Indemnifying Party, in the defense of any such claim or any resulting litigation, will, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term from the claimant or plaintiff to the Indemnified Party of a release from all liability in respect of the claim or litigation.
(b) If the indemnification claim at its own provided for in this Article 6 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying the Indemnified Party hereunder, will contribute to the amount paid or payable by the Indemnified Party as a result of the loss, liability, claim, damage, or expense in the proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with counsel selected by the statements or omissions that resulted in the loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and reasonably acceptable to of the Indemnified Party; provided, however, that an Indemnified Party will have be determined by reference to, among other things, whether the right to retain its own counsel, at its own expense, except that the fees and expenses untrue or alleged untrue statement of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement a material fact or the scope or enforceability of any Patents, Confidential Information, or other rights licensed omission to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (state a material fact relates to information supplied by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without and the written consent parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent the statement or omission, provided however, that, in any case, (i) no Holder will be required to contribute any amount in excess of the Indemnifying Party net proceeds of all the Registrable Securities offered and sold by the Holder pursuant to the registration statement that are received by such Holder; (ii) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the U.S. Securities Act) will be entitled to contribution from any person or entity who was not guilty of fraudulent misrepresentation; and (iii) the obligations under this Section 15.3 6.3(b) shall be several, not joint and several, for each Holder.
(Indemnification Procedure)c) The obligations of the Corporation and the Holders under this Article 6 shall survive the completion of any offering of Registrable Securities in a registration statement under Article 3 of this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Clementia Pharmaceuticals Inc.)
Indemnification Procedure. Each Party, if seeking (a) If any Purchaser Indemnified Party intends to seek indemnification under pursuant to this Article 15 (Indemnification) (VIII, such Purchaser Indemnified Party shall promptly notify the “Indemnifying Parties in writing. The Purchaser Indemnified Party”), Party will give [**] written provide the Indemnifying Parties with prompt notice of the any third-party claim in respect of which indemnification is sought. The failure to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing provide either such notice will not relieve the Indemnifying Party of its indemnification obligation, affect any rights hereunder except to the extent it is actually the Indemnifying Parties are materially prejudiced thereby.
(b) If such claim involves a claim by such failure or delay. Each Party will promptly furnish to a third-party against the other Party copies of all papers and official documents received in respect of any Losses. The Purchaser Indemnified Parties, the Indemnifying Party will have the rightParties may, exercisable by written upon notice to the Purchaser Indemnified PartyParties, to assume and control the defense assume, through counsel of the indemnification claim Indemnifying Parties’ choosing and at its own expense with counsel selected by the Indemnifying Party Parties’ expense, the settlement or defense thereof, and the Purchaser Indemnified Parties shall reasonably acceptable to cooperate with the Indemnifying Parties in connection therewith; provided that the Purchaser Indemnified PartyParties may participate in such settlement or defense through counsel chosen by them; provided, howeverfurther, that an if the Purchaser Indemnified Party will have Parties reasonably determine that representation by the right to retain its own counselcounsel of the Indemnifying Parties and the Purchaser Indemnified Parties may present such counsel with a conflict of interests, at its own expense, except that then the Indemnifying Parties shall pay the reasonable fees and expenses of the Purchaser Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedingsParties’ counsel. If the Indemnifying Party does not assume the defense of the indemnification claim as described Notwithstanding anything in this Section 15.3 (Indemnification Procedure)8.3 to the contrary, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)Parties may not, without the prior written consent of the Purchaser Indemnified PartyParties, which settle or compromise any action or consent to the entry of any judgment, such consent not to be unreasonably withheld. So long as the Indemnifying Parties are contesting any such claim in good faith, the Purchaser Indemnified Parties shall not pay or settle any such claim without the Indemnifying Parties’ consent, in each case (by such consent not to be unreasonably withheld. If the Indemnifying Party or Parties are not contesting such claim in good faith, then the Purchaser Indemnified PartyParties may conduct and control, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party through counsel of their own choosing and at the Indemnifying Party’s expense Parties’ expense, the settlement or defense thereof, and will make available the Indemnifying Parties shall cooperate with it in connection therewith. The failure of the Purchaser Indemnified Parties to participate in, conduct or control such defense shall not relieve the Indemnifying Parties’ of any obligation they may have hereunder.
(c) Notwithstanding anything to the Indemnifying Party all pertinent information under the control of the Indemnified Partycontrary in this Section 8.3, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the extent a claim for which indemnification is sought by Purchaser Indemnified Party (Parties relates to Taxes for a taxable period beginning on or before and its counselending after the Closing Date, if applicable) regarding its defense Seller and Purchaser shall jointly control any Proceeding in respect of such claim and neither party shall settle or compromise any action or consent to the action entry of any judgment with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached respect thereto without the prior written consent of the Indemnifying Party pursuant other party, such consent not to this Section 15.3 (Indemnification Procedure)be unreasonably withheld.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) a. In the event of a Loss for which a Party (the “Indemnified Party”), will give [**] written notice of the claim to ) seeks from the other Party (the “Indemnifying Party”); provided) indemnification and defense pursuant to Section 8.1 or Section 8.2, however, that any failure or delay in providing such notice the Indemnified Party will not relieve promptly notify the Indemnifying Party of its indemnification obligationeach such Loss, except to and the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with thereof with, counsel selected by the Indemnifying Party and reasonably acceptable satisfactory to the Indemnified Party; provided, however, provided that an the Indemnified Party will have the right to retain its own counsel, counsel at its own expense, cost except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such the Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing conflicting interests between the Indemnified Party and any other party represented Parties in which case the cost shall be borne by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do soParty. The Indemnified Party indemnifications provided for by Section 8.1 and Section 8.2 will not settle or compromise the indemnification claim apply to amounts paid in settlement of any Loss if such settlement is effected without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written which consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayedwithheld. The failure to promptly deliver notice of a Loss to the Indemnifying Party after service of the complaint, if materially prejudicial to the Indemnifying Party’s ability to defend such complaint, will relieve the Indemnifying Party of any liability to the Indemnified Party under this Section 8.3 only to the extent so prejudiced. The Indemnified Party will reasonably cooperate with the Indemnifying Party at in the Indemnifying Partyinvestigation and defense of each Loss.
b. With respect to each Infringement Claim, without limiting Amgen’s expense and will make available other rights or remedies under this Agreement, Insulet shall use commercially reasonable efforts to obtain the Indemnifying Party all pertinent information under intellectual property rights that are the control subject of the Indemnified Party, which information will be subject claim or design around the alleged/actual infringement such that there is no infringement (while still being able to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to satisfy the Indemnified Party (and its counsel, if applicable) regarding its defense of Specifications for the action Customized Insulet Device in accordance with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification ProcedureAgreement).
Appears in 1 contract
Sources: Supply Agreement (Insulet Corp)
Indemnification Procedure. Each Party, if If either Party is seeking indemnification under this Article 15 Sections 10.1 (IndemnificationIndemnification by Licensor) or 10.2 (Indemnification by Licensee) (the “Indemnified Party”), will give [**] written notice of the claim to it shall inform the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve ) of the Indemnifying Party of its indemnification obligation, except Claim giving rise to the extent it is actually prejudiced by obligation to indemnify pursuant to such failure or delay. Each Party will promptly furnish to section as soon as reasonably practicable after receiving notice of the other Party copies Claim, but not later than [***] after receiving notice of all papers and official documents received in respect of any Lossesthe Claim. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not may assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then any such Claim for which it is obligated to indemnify the Indemnified Party may defend the indemnification claim but will have no obligation to do soParty. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably shall cooperate with the Indemnifying Party at and the Indemnifying Party’s expense and will make available to insurer as the Indemnifying Party all pertinent information under may reasonably request [***]. The Indemnified Party may participate, [***] and with counsel of its choice, in the control defense of any Claim or suit that has been assumed by the Indemnifying Party. Neither Party shall have the obligation to indemnify the other Party in connection with any settlement made without such Party’s written consent, which consent shall not be unreasonably conditioned, withheld, or delayed. If the Parties cannot agree as to the application of Section 10.1 (Indemnification by Licensor) or Section 10.2 (Indemnification by Licensee) as to any Claim, pending resolution of the Indemnified Partydispute pursuant to Section 13.9 (Dispute Resolution), which information will be subject the Parties may conduct separate defenses of such Claim, with each Party retaining the right to Article 14 claim indemnification from the other Party in accordance with Section 10.1 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party Indemnification by Licensor) or Section 10.2 (and its counsel, if applicableIndemnification by Licensee) regarding its defense upon resolution of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)underlying Claim.
Appears in 1 contract
Indemnification Procedure. Each (a) Promptly after receipt by a Purchaser Indemnified Party or a Norfolk Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice by a third party of any complaint or the commencement of any action or proceeding with respect to which indemnification is being sought hereunder, if seeking indemnification under this Article 15 (Indemnification) such Indemnified Party shall notify Purchaser or Sellers, whoever is the appropriate indemnifying party hereunder (the “Indemnified "Indemnifying Party”"), will give [**] written notice of such complaint or of the claim to the other Party (the “Indemnifying Party”)commencement of such action or proceeding; provided, however, that any the failure or delay in providing such notice will to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligationfrom liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have hereunder with respect to such claim if, except but only if, and only to the extent it is actually prejudiced by that, such failure or delay. Each to notify the Indemnifying Party will promptly furnish results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the other Indemnifying Party copies of all papers and official documents received in with respect of any Lossesto such claim. The Indemnifying Party will shall have the right, exercisable by upon written notice to the Indemnified Party, to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and control the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the indemnification claim at its own expense with action or proceeding or to employ counsel selected by the Indemnifying Party and reasonably acceptable satisfactory to the Indemnified Party, in either case in a timely manner, then such Indemnified Party may employ counsel to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that an the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party will or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel, counsel at its such party's own expense, except that the fees and expenses of . The Indemnifying Party or the Indemnified Party’s counsel will be paid by , as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If Party, as the Indemnifying Party does not assume case may be, reasonably apprised of the status of the defense of any action the indemnification claim as described defense of which they are maintaining and to cooperate in this Section 15.3 good faith with each other with respect to the defense of any such action.
(Indemnification Procedure), then the b) No Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification claim is being sought hereunder without the prior written consent of the Indemnifying Party, and unless such settlement, compromise or consent includes an unconditional release of the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability from all liability arising out of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which consentindemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which in each case (by any manner affects, restrains or interferes with the Indemnifying business of the Indemnified Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control any of the Indemnified Party's respective affiliates.
(c) In the event an Indemnified Party shall claim a right to payment pursuant to this Agreement, which information will be subject such Indemnified Party shall send written notice of such claim to Article 14 (Confidentiality)the appropriate Indemnifying Party. The Such notice shall specify the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party will provide periodic updates shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) business days of the final determination of the merits and amount of such claim, the Indemnifying Party shall deliver to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if immediately available funds in an amount equal to such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)claim as determined hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Medical Products Inc)
Indemnification Procedure. Each PartyFor purposes of administering the indemnification provisions set forth in this Article IX, if seeking indemnification the following procedure shall apply:
(a) Whenever a Claim shall arise under this Article 15 (Indemnification) IX, the party entitled to indemnification (the “Indemnified Party”)) shall promptly and in no event later than ten (10) days after becoming aware of such a Claim, will give [**] written notice of the claim to the other Party party from whom indemnification is sought (the “Indemnifying Party”); provided) setting forth in reasonable detail, however, that any failure or delay in providing such notice will not relieve the Indemnifying Party of its indemnification obligation, except to the extent then available, the facts concerning the nature of such Claim and the basis upon which the Indemnified Party believes that it is actually prejudiced by such failure or delay. Each Party will promptly furnish entitled to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the rightindemnification hereunder, exercisable by written notice to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, provided that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid failure to do so shall not preclude it from seeking indemnification hereunder unless such failure has materially prejudiced the Indemnifying Party’s ability to defend such Claim.
(b) In the event of any Claim hereunder resulting from or in connection with any Claim brought by a third party, the Indemnifying Party if representation of such shall be entitled, at its sole expense, either:
(i) to participate therein, or
(ii) to assume the entire defense thereof with counsel who is selected by it and who is reasonably satisfactory to the Indemnified Party by the counsel retained by provided that:
(A) the Indemnifying Party would be inappropriate due to actual or potential differing interests between agrees in writing that it does not and will not contest its responsibility for indemnifying the Indemnified Party and any other party represented by in respect of such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 Claim, and
(Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have B) no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), settlement shall be made without the prior written consent of the Indemnified Party, Party which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will shall not be unreasonably withheld (except that no such consent shall be required if the claimant is entitled under the settlement to only monetary damages to be paid solely by the Indemnifying Party). After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Claim, the Indemnifying Party shall not be liable to the Indemnified Party under this Article IX for any legal or delayedother expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation or of assistance as contemplated by this Section 9.4 If, however, (1) the Claim would, if successful, result in the imposition of damages for which the Indemnifying Party would not be solely responsible hereunder, or (2) representation of both parties by the same counsel would otherwise be inappropriate due to actual or potential conflicts of interest between them, then the Indemnifying Party shall not be entitled to assume the entire defense and each party shall be entitled to retain counsel (in the case of Clause (A) of this sentence, at their own expense) who shall cooperate with one another in defending against such Claim.
(c) If the Indemnifying Party does not choose to defend against a Claim by a third party, the Indemnified Party may defend against such Claim in such manner as it deems appropriate or settle such Claim (after giving notice thereof to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate, and the Indemnified Party shall be entitled to periodic reimbursement of expenses incurred in connection therewith and prompt indemnification from the Indemnifying Party, including reasonable attorneys’ fees, in accordance with this Article IX.
(d) The Indemnifying Party will not, without the Indemnified Party’s written consent, settle or compromise any Claim or consent to any entry of judgment which does not include, as an unconditional term thereof, the giving by the claimant to the Indemnified Party of a release from all liability with respect to such Claim.
(e) In any event, the Indemnifying Party and the Indemnified Party shall cooperate in the defense of any Claim subject to this Section 9.4 and the records of each shall be available to the other with respect to such defense (except to the extent counsel of a party advises non-disclosure is reasonably necessary to preserve the attorney-client privilege or similar doctrine, including the work-product doctrine). The Indemnified Party will reasonably cooperate with and the Indemnifying Party at shall each render to each other such assistance as may reasonably be requested in order to ensure the Indemnifying Party’s expense proper and will make available adequate defense of any such Claim.
(f) Upon making any payment to an Indemnified Party in respect of any Claim, the Indemnifying Party will, the extent of such payment, be subrogated to all pertinent information under the control rights of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicableAffiliates) regarding its defense against any third party in respect of the action with immediate notice regarding any material developmentsClaim to which such payment relates. The Such Indemnified Party (and its Affiliates) and Indemnifying Party will not execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights.
(g) Neither Buyer nor Seller shall be liable for deemed to have notice of any settlement Claim by reason of any knowledge acquired on or other disposition of Losses prior to the Closing Date by the Indemnified Party if such settlement is reached without the written consent an employee of the Indemnifying Party pursuant Station unless express evidence is available establishing actual notice to this Section 15.3 (Indemnification Procedure)either party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fisher Communications Inc)
Indemnification Procedure. Each Party(a) Promptly following receipt by an Indemnified Party of notice by a third party (including any Governmental Entity) of any complaint, if seeking dispute or claim or the commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Party may be entitled to indemnification pursuant hereto, such Indemnified Party shall provide written notice thereof to the Party obligated to indemnify under this Article 15 (Indemnification) (the “Indemnified Party”), will give [**] written notice of the claim to the other Party Agreement (the “Indemnifying Party”); , provided, however, that any the failure or delay in providing such notice will not to so notify the Indemnifying Party shall relieve the Indemnifying Party of its indemnification obligationfrom liability hereunder with respect to such claim only if, except and only to the extent it is actually prejudiced by that, such failure or delay. Each to so notify the Indemnifying Party will promptly furnish results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the other Indemnifying Party copies of all papers and official documents received in with respect of any Lossesto such claim. The Indemnifying Party will shall have the right, exercisable by upon written notice delivered to the Indemnified Party within twenty (20) days thereafter assuming full responsibility for any AXLX Losses or VOIP Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, to assume in either case within such 20- day period, then any AXLX Losses or any VOIP Losses (as the case may be), shall include the reasonable fees and control disbursements of counsel for the Indemnified Party as incurred. In any audit, investigation, action or proceeding for which indemnification is being sought hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; providedsuch action, however, that an Indemnified Party will shall have the right to participate in such matter and to retain its own counsel, counsel at its such Party’s own expense, except that the fees and expenses of . The Indemnifying Party or the Indemnified Party’s counsel will be paid by Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party if representation of such or Indemnified Party by (as the counsel retained by case may be) reasonably apprised of the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume status of the defense of any matter the indemnification claim as described defense of which it is maintaining and to cooperate in this Section 15.3 good faith with each other with respect to the defense of any such matter.
(Indemnification Procedure), then the b) No Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification claim is being sought hereunder without the prior written consent of the Indemnifying PartyParty (which may not be unreasonably withheld or delayed), and unless (i) the Indemnifying Party will not settle fails to assume and maintain the defense of such claim pursuant to Section 10.3(a) or (ii) such settlement, compromise or consent includes an unconditional release of the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any PatentsIndemnifying Party and its officers, Confidential Informationdirectors, employees and Affiliates from all liability arising out of, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which consentindemnification is being sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in each case (by any manner affects, restrains or interferes with the Indemnifying business of the Indemnified Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control any of the Indemnified Party’s Affiliates.
(c) In the event an Indemnified Party claims a right to payment pursuant hereto with respect to any matter not involving a third party complaint, which information will be subject dispute or claim, such Indemnified Party shall send written notice of such claim to Article 14 the appropriate Indemnifying Party (Confidentialitya “Notice of Claim”). Such Notice of Claim shall specify the basis for such claim. The failure by any Indemnified Party so to notify the Indemnifying Party will provide periodic updates shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 10.3(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party (and its counselunder this Article or the amount thereof, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses claim specified by the Indemnified Party if in such settlement is reached without the written consent Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party pursuant under this Article X, and the Indemnifying Party shall pay the amount of such liability to this Section 15.3 the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (Indemnification Procedure)or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has timely disputed its liability with respect to such claim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) Business Days following the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder.
Appears in 1 contract
Sources: Contribution Agreement
Indemnification Procedure. Each Party, if seeking In the case of any claim asserted by a third party against a party entitled to indemnification under this Article 15 (Indemnification) Agreement (the “"Indemnified Party”"), will give [**] written notice of shall be given by the claim Indemnified Party to the other Party indemnifying party (the “Indemnifying Party”); provided, however, that any failure or delay in providing "Indemnitor") promptly after such notice will not relieve the Indemnifying Indemnified Party of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect has actual knowledge of any Losses. The Indemnifying claim as to which indemnity may be sought, and the Indemnified Party will have shall permit the rightIndemnitor (at Indemnitor's expense) to assume the defense of any claim or any litigation resulting therefrom, exercisable by written notice provided that (i) the counsel for the Indemnitor who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then ii) the Indemnified Party may defend participate in such defense at such Indemnified Party's expense, and (iii) the indemnification claim but will have no obligation to do so. The omission by any Indemnified Party will to give notice as provided herein shall not settle or compromise relieve the Indemnitor of its indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights obligation under this Agreement or except to the scope or enforceability extent that such omission results in a failure of any Patents, Confidential Information, or other rights licensed actual notice to Licensee by ▇▇▇▇▇▇ hereunder), without the Indemnitor and the Indemnitor is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Indemnified Party, which consentthe Indemnitor, in the defense of any such claim or litigation, shall not consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each case (claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Indemnified Party shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the Indemnifying Indemnitor might be expected to affect adversely the Indemnified Party's tax liability or the ability of the Indemnified Party or Indemnified Partyany of its subsidiaries to conduct its business, as or that the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate may have available to it one or more defenses or counterclaims that are inconsistent with the Indemnifying Party at the Indemnifying Party’s expense and will make one or more of those that may be available to the Indemnifying Party all pertinent information under the control Indemnitor in respect of the Indemnified Partysuch claim or any litigation relating thereto, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (shall have the right at all times to take over and its counselassume control over the defense, if applicable) regarding its defense settlement, negotiations or litigation relating to any such claim at the sole cost of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by Indemnitor, provided that if the Indemnified Party if does so take over and assume control, the Indemnified Party shall not settle such settlement is reached claim or litigation without the written consent of the Indemnifying Indemnitor, such consent not to be unreasonably withheld. In the event that the Indemnitor does not accept the defense of any matter as above provided, the Indemnified Party pursuant shall have the full right to defend against any such claim or demand and shall be entitled to settle or agree to pay in full such claim or demand. Notwithstanding the foregoing, the Indemnitor shall still provide indemnification to the Indemnified Party. In any event, the Indemnitor and the Indemnified Party shall cooperate in the defense of any claim or litigation subject to this Section 15.3 (Indemnification Procedure)7.3 and the records of each shall be available to the other with respect to such defense.
Appears in 1 contract
Indemnification Procedure. Each Party(a) Promptly, if seeking but in no event later than ten (10) days after the receipt by any Party hereto of notice of (a) any claim or (b) the commencement of any action or proceeding in respect of which such Party intends to seek indemnification under this Article 15 (Indemnification) hereunder, such Party (the “Indemnified Party”), such Party will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing ) notice of such notice will not relieve claim and shall to the extent permitted by law permit the Indemnifying Party to assume the defense of any such claim, and, upon such assumption, shall cooperate fully with the Indemnifying Party in the conduct of such defense. If the Indemnified Party is advised in writing by its indemnification obligation, except legal counsel that there is a conflict between the positions of the Indemnifying Party and the Indemnified Party in conducting the defense of such action or that there are legal defenses available to the extent it is actually prejudiced by such failure Indemnified Party different from or delay. Each Party will promptly furnish in addition to those available to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the rightParty, exercisable by written notice to then counsel for the Indemnified Party, at the Indemnified Party’s expense, shall be entitled to assume conduct the defense only to the extent necessary to protect the interests of the Indemnified Party. If the Indemnifying Party assumes the defense of any such claim, the obligations of the Indemnifying Party as to such claim shall include all steps necessary in the defense or settlement of such claim and to holding the Indemnified Party harmless from and against any and all losses, caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim. The Indemnified Party may participate, at its expense, in the defense of such claim provided that the Indemnifying Party shall direct and control the defense of the indemnification such claim. Failure to provide timely notice of a claim at its own expense with counsel selected by shall not eliminate the Indemnifying Party and reasonably acceptable Party’s indemnification obligations to the Indemnified Party unless and only to the extent to which such failure has substantially prejudiced the Indemnifying Party; provided, however, that an Indemnified Party will have no such claim shall be settled without the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Indemnifying Party’s counsel will prior written consent, which consent shall not be paid by unreasonably withheld. The absence of a complete and general release of all claims against the Indemnifying Party if representation of such Indemnified Party by the counsel retained by shall be reasonable grounds for the Indemnifying Party would be inappropriate due to actual refuse to provide written consent to a settlement or potential differing interests between compromise. Notwithstanding the Indemnified Party and any other foregoing, each party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without shall obtain the prior written consent of the other party prior to ceasing to defend, settling or otherwise disposing of any claims of patent infringement or other intellectual property rights related to the Product.
(b) If the Indemnifying PartyParty shall not assume the defense of any such claim, the Indemnified Party may defend against such claim in such manner as it may deem appropriate and, unless the Indemnifying Party shall undertake to indemnify the Indemnified Party for the amount demanded in such claim including all reasonable expenses, legal or otherwise, incurred so far, the Indemnified Party may settle such claim on such terms as it may deem appropriate, and the Indemnifying Party will not settle shall promptly pay the Indemnified Party for the amount of all reasonable expenses, legal or compromise otherwise, incurred by the indemnification claim Indemnified Party in any manner that would have an adverse effect on connection with the defense against or settlement of such claims and shall be bound by the results obtained by the Indemnified Party’s interests (including any rights under this Agreement or . If no settlement of such claim is made, the scope or enforceability Indemnifying Party shall promptly pay the Indemnified Party for the amount of any Patentsjudgment rendered with respect to such claim incurred by the Indemnified Party in the defense against such claim.
(c) Each party agrees that it will not, Confidential Information, whether in the context of litigation or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)otherwise related thereto, without the prior written consent of the Indemnified Partyother party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will such consent not to be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate , enter into any agreement or arrangement with any third party which in any way compromises, relinquishes, waives or otherwise affects, in whole or in part, the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control rights of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense other party under this Agreement in respect of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section Product.
(d) EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTIONS 15.1, 15.2 AND 15.3 REGARDING INDEMNIFICATION WITH RESPECT TO THIRD PARTY CLAIMS AND LOSSES, NEITHER BIOMARIN OR HI-TECH (Indemnification Procedure)OR ANY OF THEIR RESPECTIVE AFFILIATES) SHALL BE LIABLE TO THE OTHER UNDER ANY PROVISION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE.
Appears in 1 contract
Sources: License and Supply Agreement (Biomarin Pharmaceutical Inc)
Indemnification Procedure. Each Party, if (a) Any Person seeking indemnification under this Article 15 (Indemnification) Section 8.1 (the “"Indemnified Party”), will give [**] written ") shall promptly notify the party from whom indemnification is being sought (the "Indemnifying Party") in writing of any claim or demand for which the Indemnified Party is asserting an indemnification claim. Notice shall in all events be considered prompt if given no later than thirty days after the Indemnified Party becomes aware of such claim or demand. Such notice shall be accompanied by a reasonably full description of the basis for such claim or demand and a reference to the other Party (the “Indemnifying Party”)provisions of this Agreement under which liability is asserted; provided, however, that no delay on the part of the Indemnified Party in notifying any failure or delay in providing such notice will not Indemnifying Party shall relieve the Indemnifying Party of its indemnification obligation, except any liability hereunder unless (and then solely to the extent it extent) the Indemnifying Party is actually prejudiced by such failure or delay. Each .
(b) The Indemnifying Party will promptly furnish shall have the right to participate jointly in the defense of any third party Legal Action in connection with which the Indemnified Party is seeking indemnification hereunder, and the Indemnifying Party may elect to take over the defense of such Legal Action with counsel satisfactory to the other Party copies of all papers and official documents received in respect of any LossesIndemnified Party. The Indemnifying Party shall notify the Indemnified Party within thirty days of its receipt of a claim notice pursuant to this Section 8.2 as to whether or not it will have assume the rightdefense against such Legal Action. If the Indemnifying Party elects to take over the defense of such Legal Action, exercisable by written notice then:
(i) it shall keep the Indemnified Party informed as to the status of such Legal Action and shall promptly send copies of all related pleadings to the Indemnified Party;
(ii) with respect to any claim involved in such Legal Action, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable shall have the sole right to contest, settle or otherwise dispose of such claim on such terms as the Indemnified PartyIndemnifying Party shall deem appropriate; provided, however, that an the consent of the Indemnified Party will to any settlement or disposition shall be required if (A) it results in any liability to or equitable relief against the Indemnified Party, (B) the result would restrict the future activity of the Indemnified Party or any of its Affiliates or (C) the result would result in the admission or finding of a violation of law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates; and
(iii) the Indemnified Party shall have the right to retain participate jointly in the defense of such Legal Action with another counsel of its own counselchoosing, but shall do so at its own expense, except that the fees and expenses of cost unless (A) there are defenses available to the Indemnified Party that are not available to the Indemnifying Party or (B) a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party’s , in which case the costs of such of other counsel will shall be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedingsParty. If the Indemnifying Party does not assume elect to take over the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)such Legal Action, then the Indemnified Party may defend shall have the indemnification claim right, but will have no obligation not the obligation, to do so. The Indemnified Party will not contest, settle or compromise the indemnification claim without the prior written consent otherwise dispose of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)Legal Action.
Appears in 1 contract
Indemnification Procedure. Each Party, if seeking indemnification under this Article 15 (Indemnification) (the “Upon receipt by an Indemnified Party”), will give [**] written Party of actual notice of the claim an action against such Indemnified Party with respect to the other which indemnity may be sought, such Indemnified Party (the “Indemnifying Party”)shall promptly notify Cortelco Holding in writing; provided, however, provided that any failure or delay in providing such notice so to notify Cortelco Holding will not relieve the Indemnifying Party Cortelco Holding from any liability which Cortelco Holding may have on account of its indemnification obligationthis indemnity or otherwise, except to the extent it is actually Cortelco Holding will have been materially prejudiced by such the failure or delayto be notified. Each Party will promptly furnish to Cortelco Holding will, if requested by the other Party copies of all papers and official documents received in respect Indemnified Party, assume the defense of any Losses. The Indemnifying Party will have action including the right, exercisable by written notice employment of counsel reasonably satisfactory to the Indemnified Party, to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an . Any Indemnified Party will have has the right to retain its own counselemploy separate counsel in any action and participate in the defense. The reasonable and documented fees of such separate counsel will be paid by Cortelco Holding only if (i) Cortelco Holding has failed to assume the defense and to employ counsel or (ii) the special counsel reasonably determines that a conflict of interest exists which makes representation by counsel chosen by Cortelco Holding not advisable, at its own expenseand Cortelco Holding has failed, except that after written notice, to promptly rectify such conflict of interest. Cortelco Holding will not be liable for the fees and expenses of more than one separate counsel for all Indemnified Parties in connection with any one action or separate but similar related actions in the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense same jurisdiction arising out of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do sosame general allegations or circumstances. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party Cortelco Holding will not be liable for any settlement of any action (or other disposition of Losses for any related losses, damages, liabilities or expenses) effected by the an Indemnified Party if without such settlement is reached without the Indemnifying Party’s written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)consent.
Appears in 1 contract
Indemnification Procedure. Each person to be indemnified pursuant to this Agreement (an "Indemnified Party") agrees to give prompt notice to the indemnifying party of the assertion of any claim, if seeking indemnification or the commencement of any suit, action or proceeding, brought against or sought to be collected from such Indemnified Party (each a "Third Party Claim"), in respect of which indemnity may be sought by such Indemnified Party under this Article 15 (Indemnification) (Agreement; provided that the “omission so to promptly notify the indemnifying party with respect to a Third Party Claim brought against or sought to be collected from such Indemnified Party”), will give [**] written notice of the claim to the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve the Indemnifying indemnifying party from any Liability that it may have to such Indemnified Party of its indemnification obligation, under this Agreement except to the extent it is actually prejudiced by that such failure or delay. Each Party will promptly furnish has materially prejudiced such indemnifying party with respect to the other defense of such Third Party copies of all papers and official documents received in Claim. If any Indemnified Party shall seek indemnity under this Agreement with respect of any Losses. The Indemnifying to a Third Party will have Claim brought against or sought to be collected from such Indemnified Party, the rightindemnifying party shall be entitled to participate therein and, exercisable by written notice to the Indemnified Partyextent that it wishes, to assume and control direct the defense of the indemnification claim at its own expense and settlement thereof with counsel selected satisfactory to such Indemnified Party. After notice from the indemnifying party to an Indemnified Party of its election to assume and direct the defense and settlement of a Third Party Claim brought against or sought to be collected from such Indemnified Party that such indemnifying party is entitled to assume and direct under the terms hereof, the indemnifying party shall not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation, unless the Indemnifying Party and reasonably acceptable to the Indemnified Party; providedParty are both named parties to any such action, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees claim or demand and expenses representation of the Indemnified Party’s counsel will be paid both parties by the Indemnifying Party if representation of such Indemnified Party by the same counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests conflicts of interest between them. Notwithstanding the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense foregoing provisions of the indemnification claim as described in this Section 15.3 5, the indemnifying party shall not (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim A) without the prior written consent of the Indemnifying an Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is, or with reasonable foreseeability, could have been a party and the Indemnifying indemnity could have been sought hereunder by such Indemnified Party will not settle for a Third Party Claim brought against or compromise the indemnification claim in any manner that would have an adverse effect on the sought to be collected from such Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Informationunless such settlement includes an unconditional release, or other rights licensed in form and substance satisfactory to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consentof such Indemnified Party from all Liability arising out of such proceeding (provided that, whether or not such a release is required to be obtained, the indemnifying party shall remain liable to such Indemnified Party in each case (by accordance with this Agreement in the Indemnifying event that a Third Party Claim is subsequently brought against or sought to be collected from such Indemnified Party, as the case may be), will not be unreasonably withheld ) or delayed. The Indemnified Party will reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicableB) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement of any Third Party Claim brought against or other disposition of Losses by sought to be collected from an Indemnified Party effected without such indemnifying party's written consent (which shall not be unreasonably withheld), but if settled with such indemnifying party's written consent, or if there is a final judgment for the plaintiff in any such Third Party Claim, such indemnifying party agrees (to the extent stated above) to indemnify the Indemnified Party if from and against any loss, liability, claim, damage or expense by reason or such settlement is reached without the written consent or judgment. The indemnification required by this Agreement shall be made by payments of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)amount thereof during the course of the investigation or defense, as and when bills are received or loss, liability, claim, damage or expense is incurred.
Appears in 1 contract
Sources: Formation and Capitalization Agreement (Snyder Oil Corp)
Indemnification Procedure. Each Party(a) Promptly after receipt by an Indemnified Party of notice by a third party (including any Governmental Body) of any complaint or the commencement of any audit, if seeking investigation, action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from Purchaser for any Losses subject to indemnification under this Article 15 hereunder (Indemnification) (the “Indemnified PartySeller Losses”), such Indemnified Party will give [**] written notice of notify the claim to the other Party (the “Indemnifying Party”)Purchaser in writing thereof; provided, however, that any the failure or delay in providing to so notify Purchaser will relieve Purchaser from liability under this Agreement with respect to such notice will not relieve the Indemnifying Party of its indemnification obligationclaim only if, except and only to the extent it is actually prejudiced by that, such failure to notify Purchaser results in the forfeiture by Purchaser of rights and defenses otherwise available to Purchaser with respect to such claim or delaymaterially prejudices Purchaser in exercising such rights or defenses. Each Party will promptly furnish to Purchaser shall assume the other Party copies defense of all papers and official documents received in respect such audit, investigation, action or proceeding, including the employment of any Losses. The Indemnifying Party will have the right, exercisable by written notice counsel reasonably satisfactory to the Indemnified Party, within twenty (20) days of receiving such notice, but in any event, prior to the time any answer or other filing must be made, and Purchaser shall be responsible for the payment of the fees and disbursements of such counsel. In the event, however, that Purchaser declines or fails to assume and control the defense of the indemnification claim at its own expense with counsel selected by audit, investigation, action or proceeding on the Indemnifying Party and reasonably acceptable terms provided above or to employ qualified counsel, in either case within the period described in the immediately preceding sentence, then the Indemnified Party; providedParty shall have the right to assume the defense of such action and retain counsel of its choosing and the Purchaser shall pay the reasonable fees and disbursements of such counsel as incurred. In any audit, howeverinvestigation, that an action or proceeding for which Purchaser has assumed the defense, the Indemnified Party will have the right to participate in such matter and to retain its own counsel, counsel reasonably satisfactory to Purchaser at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between own expense; provided, however, the Indemnified Party and any other party represented shall have the right to employ separate counsel reasonably satisfactory to Purchaser at the cost of Purchaser if the Indemnified Party shall be advised by such defense counsel in such proceedingsthat there may be one or more legal defenses which are different or additional to those defenses that are available to the Purchaser. If Purchaser will at all times use reasonable efforts to keep the Indemnifying Indemnified Party does not assume reasonably apprised of the status of the defense of any matter the indemnification claim as described defense of which Purchaser has assumed and to cooperate in this Section 15.3 (Indemnification Procedure), then good faith with the Indemnified Party may defend with respect to the indemnification claim but will have no obligation to do so. The defense of any such matter.
(b) No Indemnified Party will not may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification claim is being sought hereunder without the prior written consent of Purchaser, unless (i) Purchaser fails to assume and maintain the Indemnifying Partydefense of such claim pursuant to Section 13.2(a) or (ii) such settlement, compromise or consent includes an unconditional release of Purchaser and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability its officers and directors from all liability arising out of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Purchaser may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which consentindemnification is being sought hereunder unless such settlement, in each case compromise or consent includes an unconditional release of all Indemnified Parties from all liability arising out of such claim.
(by c) In the Indemnifying event an Indemnified Party or Indemnified Partyclaims a right to payment pursuant to this Article 13, as the case may be), will not be unreasonably withheld or delayed. The such Indemnified Party will reasonably cooperate with send written notice of such claim to Purchaser. Such notice will specify the Indemnifying Party at basis for such claim and the Indemnifying Party’s expense and will make available amount to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject paid. Purchaser agrees to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates pay to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding or any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses third party as directed by the Indemnified Party if promptly in an amount equal to the stipulated amount set forth in such settlement is reached notice; provided, however, no payment shall be required to be made unless and until all notice and other procedural requirements of this Article 13 have been satisfied.
(d) Notwithstanding the foregoing, Purchaser shall not be liable to pay any Losses for which insurance proceeds are available and any Indemnified Party receiving such insurance proceeds for any claim covered by the indemnification provided in this Article 13 shall, to the extent Purchaser has paid any Losses with respect to such claim, pay over such insurance proceeds to Purchaser; provided, however, pending receipt of any such insurance proceeds Purchaser shall be liable for Losses (including, without limitation, any defense costs) to the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)extent provided hereunder.
Appears in 1 contract
Indemnification Procedure. Each 8.4.1 Upon the occurrence of a Buyer or Seller Indemnified Liability not involving a third party Claim, the Party Indemnifying shall, upon demand, pay to or on behalf of the Indemnified Party, if seeking indemnification under any amounts to which the Indemnified Party is entitled by reason of the provisions of this Article 15 Eight. Such payment shall be made in cash or other immediately available funds at the then address of the Indemnified Party for notice purposes pursuant to this Agreement.
8.4.2 If, within 30 business days of receipt of a Claim Notice involving a third party Claim, the Party Indemnifying does not elect in writing to control the defense of the Claim described therein or does not thereafter actively and in good faith prosecute the defense thereof (Indemnificationincluding, if necessary, by all appropriate legal proceedings, including appeal), the Indemnified Party may (but shall have no obligation to) (elect to thereafter control all aspects of the “defense of any such Claim with attorneys of its choice, at the expense of the Party Indemnifying, and the Party Indemnifying shall be bound by the result obtained with respect thereto by the Indemnified Party”).
8.4.3 If the Party Indemnifying elects to conduct the defense of a third party Claim, will give [**] written notice such may be conducted in the name and on behalf of the claim Party Indemnifying or the Indemnified Party as may be appropriate. Such contest shall be conducted by attorneys selected and employed and compensated by the Party Indemnifying; provided, the Indemnified Party shall have the right to participate in such proceedings and to be represented by attorneys of its own choosing; however, the other cost and expense attributable to such attorneys employed by the Indemnified Party (shall be borne solely by the “Indemnified Party. Even if the Indemnified Party joins in any such contest, the Party Indemnifying Party”)shall have full authority to determine all action to be taken with respect thereto; provided, however, that no Encumbrance on any failure or delay in providing such notice will not relieve the Indemnifying Party asset of its indemnification obligation, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to the Indemnified PartyParty shall result therefrom and that no judgment, award, decree, order, injunction or equitable relief binding on the Indemnified Party shall be agreed to assume and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, Party which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will consent shall not be unreasonably withheld or delayedwithheld. Any refusal to consent shall be based on written advice by legal counsel to the Indemnified Party. The Indemnified Party will reasonably cooperate with shall at all times retain the Indemnifying Party at the Indemnifying Party’s expense and will make available right to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality)settle any Claim. The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if If such settlement is reached without the written consent of the Indemnifying Party pursuant (which will not be unreasonably withheld or delayed), the Indemnifying Party shall be relieved of its obligations with respect to such Claim under this Section 15.3 Article Eight.
8.4.4 At any time after commencement of the defense of any Claim, the Party Indemnifying may request the Indemnified Party to agree in writing to the abandonment of such contest or to the payment or compromise by the Party Indemnifying of such Claim, whereupon such action shall be taken unless the Indemnified Party determines that the contest should be continued, and so notifies the Party Indemnifying in writing within 15 working days of such request from the Party Indemnifying. If the Indemnified Party determines that the contest should be continued, the Party Indemnifying shall be liable hereunder only to the extent of the lesser of (Indemnification Procedure)i) the amount which the other party(ies) to the contested Claim had agreed to accept in payment or compromise as of the time the Party Indemnifying made its request for abandonment to the Indemnified Party or (ii) the amount for which the Party Indemnifying is found to be liable with respect to such Claim, so long as no legal or property right of the Indemnified Party hereunder shall be lessened or reduced in value as a result of the payment or compromise. The Partying Indemnifying shall be entitled to recover from the Indemnified Party any additional expenses (including reasonable attorneys' fees) incurred by such Party Indemnifying as a result of such decision by the Indemnified Party to continue to contest such Claim.
8.4.5 If requested by the Party Indemnifying, the Indemnified Party agrees to cooperate with the Party Indemnifying in contesting any Claim which the Party Indemnifying elects to contest or, if necessary to preserve the right to assert the same, in making any counterclaim against the Person asserting the Claim, or any cross-complaint against any other Person; provided, the Party Indemnifying shall reimburse the Indemnified Party for any reasonable expenses (including reasonable attorneys' fees) incurred by it in so cooperating.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Computer Language Research Inc)
Indemnification Procedure. Each Party, if seeking (a) Promptly after the incurrence of any Losses by any Person entitled to indemnification under this Article 15 pursuant to Section 8.1 or 8.2 hereof (Indemnification) (the an “Indemnified Party”), will including any claim by a third party described in Section 8.4, that might give [**] written notice of rise to indemnification hereunder, the claim Indemnified Party shall deliver to the other Party from which indemnification is sought (the “Indemnifying Party”) a certificate (the “Certificate”), which Certificate shall:
(i) state that the Indemnified Party has paid or anticipates it will incur Losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement; providedand
(ii) specify in reasonable detail (and have annexed thereto all supporting documentation, howeverincluding any correspondence in connection with any Third-Party Claim and paid invoices for claimed Losses) each individual item of Loss included in the amount so stated, the date such item was paid or accrued, the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be entitled hereunder.
(b) In the event that the Indemnifying Party shall object to the indemnification of an Indemnified Party in respect of any failure claim or delay claims specified in providing such notice will not relieve any Certificate, the Indemnifying Party shall, within forty-five (45) days after receipt by the Indemnifying Party of its indemnification obligationsuch Certificate, except to the extent it is actually prejudiced by such failure or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice deliver to the Indemnified PartyParty a notice of objection to such effect, to assume specifying in reasonable detail the basis for such objection, and control the defense of the indemnification claim at its own expense with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; providedParty shall, however, that an within the sixty (60) day period beginning on the date of receipt by the Indemnified Party will have of such objection, attempt to agree upon the right to retain its own counsel, at its own expense, except that the fees and expenses rights of the Indemnified Party’s counsel will be paid by respective Parties with respect to each of such claims to which the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between shall have so objected. If the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume shall succeed in reaching agreement on their respective rights with respect to any of such claims, the defense of Indemnified Party and the indemnification claim Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as described in this Section 15.3 (Indemnification Procedure)to any particular item or items or amount or amounts within such time period, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim shall submit such dispute to a court of competent jurisdiction as set forth in Section 10.10.
(c) Claims for Losses specified in any manner that would Certificate to which an Indemnifying Party shall not object in writing within forty-five (45) days of receipt of such Certificate, claims for Losses covered by a memorandum of agreement of the nature described in Section 8.3(b), and claims for Losses the validity and amount of which have an adverse effect on been the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability subject of any Patents, Confidential Informationjudicial determination as described in Section 8.3(b), or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate shall have been settled with the Indemnifying Party at the Indemnifying Party’s expense and will make available to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant as described in Section 8.4, are hereinafter referred to, collectively, as “Agreed Claims.” Within ten (10) Business Days of the determination of the amount of any Agreed Claim, the Indemnifying Party shall pay to this Section 15.3 the Indemnified Party an amount equal to the Agreed Claim by wire transfer in immediately available funds to the bank account or accounts designated by the Indemnified Party in a notice to the Indemnifying Party not less than two (Indemnification Procedure)2) Business Days prior to such payment.
Appears in 1 contract
Sources: Purchase Agreement (Covidien Ltd.)
Indemnification Procedure. Each Party, if If either Party is seeking indemnification under this Article 15 (Indemnification) Sections 9.1 or 9.2 (the “Indemnified Party”), will give [**] written notice of the claim to it shall inform the other Party (the “Indemnifying Party”); provided, however, that any failure or delay in providing such notice will not relieve ) of the Indemnifying Party of its indemnification obligation, except Claim giving rise to the extent it is actually prejudiced by obligation to indemnify pursuant to such failure or delay. Each Party will promptly furnish to Section as soon as reasonably practicable after receiving notice of the other Party copies of all papers and official documents received in respect of any LossesClaim. The Indemnifying Party will shall have the right, exercisable by written notice right to assume the defense of any such Claim for which it is obligated to indemnify the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE DERMAVANT SCIENCES LTD. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO DERMAVANT SCIENCES LTD. IF PUBLICLY DISCLOSED. EXECUTION VERSION Confidential Party and the Indemnifying Party’s insurer as the Indemnifying Party may reasonably request, and at the Indemnifying Party’s cost and expense. The Indemnified Party shall have the right to assume and control the defense of the indemnification claim participate, at its own expense and with counsel selected of its choice, in the defense of any Claim that has been assumed by the Indemnifying Party. Neither Party and reasonably acceptable to the Indemnified Party; provided, however, that an Indemnified Party will shall have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified indemnify the other Party will not settle or compromise the indemnification claim in connection with any settlement made without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of the Indemnified Partyconsent, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will consent shall not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with If the Indemnifying Party at the Indemnifying Party’s expense and will make available Parties cannot agree as to the Indemnifying Party all pertinent information under the control application of Section 9.1 or 9.2 to any Claim, pending resolution of the Indemnified Partydispute pursuant to Section 10.6, which information will be subject the Parties may conduct separate defenses of such Claims, with each Party retaining the right to Article 14 (Confidentiality). The Indemnifying claim indemnification from the other Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense in accordance with Section 9.1 or 9.2 upon resolution of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)underlying Claim.
Appears in 1 contract
Indemnification Procedure. Each Party, if (i) The Person seeking indemnification under this Article 15 (Indemnification) Section 6.3 (the “Indemnified Party”), will ) shall give [**] written notice of the claim to the other Party party(ies) from whom indemnification is sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 6.3(a), such notice shall be given to the Stockholders’ Agent and Scripps) of any third-party claim which may give rise to any indemnity obligation under this Section 6.3, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within ten (10) days of receipt of the Indemnified Party’s written notice; provided, however, that any failure or delay in providing such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice will shall not relieve affect the Indemnifying Party of its Party’s indemnification obligation, obligations hereunder except to the extent it the Indemnifying Party is actually materially prejudiced by such failure or delayfailure. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party will have the right, exercisable by written notice to If the Indemnified Party, Party desires to assume and control the participate in any such defense of the indemnification claim at its own expense with counsel selected assumed by the Indemnifying Party Party, it may do so at its sole cost and reasonably acceptable to the Indemnified Partyexpense; provided, however, that an the Indemnified Party will have be entitled to participate in any such defense with separate counsel at the right expense of the Indemnifying Party if, in the reasonable judgment of counsel to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual , a conflict or potential differing interests between conflict exists, or there are separate or additional defenses available to the Indemnified Party and any other party represented by Party, that would make such counsel in such proceedingsseparate representation advisable. If the Indemnifying Party does not declines to assume the any such defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure)or fails to diligently pursue any such defense, then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on be liable for all reasonable costs and expenses incurred by the Indemnified Party’s interests (Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including any rights under this Agreement or reasonable fees and disbursements of counsel. The parties hereto agree to cooperate with each other in connection with the scope or enforceability defense of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder)such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, settle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will not, without the prior written consent of the Indemnifying Party, which consentwill not be unreasonably withheld, in each case delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.
(ii) If an indemnification claim by any Indemnified Party is not disputed by the Indemnifying Party within thirty (30) days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 6.3(c)(i) or by agreement of the Indemnified PartyParty and the Indemnifying Party (any of the foregoing, a “Resolution”), then (A) in the case of indemnification under Section 6.3(b), the Buyer will pay to the Stockholder Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such Stockholder Indemnified Party as set forth in such Resolution, or (B) in the case of indemnification under Section 6.3(a), the Buyer will deliver evidence of such Resolution to Scripps and the Stockholders’ Agent, whereupon the Stockholders’ Agent will deliver to the Buyer Indemnified Party an amount equal to the Losses of such Buyer Indemnified Party as set forth in such Resolution. At the election of the Stockholders’ Agent, and only with the consent of Scripps, the amount to be delivered to the Buyer Indemnified Party in accordance with the immediately preceding sentence may be deducted from the Six-Month Stock Issuance, Annual Cash/Stock Payments or Performance Payments (if and only to the extent such amount has been earned) on a pro rata basis among the Stockholders determined in accordance with the allocation set forth in Section 1.2(b) of the Company Disclosure Schedule. In addition, at the election of the Stockholders’ Agent, and only with the consent of Scripps, the amount to be delivered to the Buyer Indemnified Party may be partially or fully satisfied out of any cash or Buyer Common Stock received by the Stockholders. If the Stockholders’ Agent elects to indemnify the Buyer using Buyer Common Stock previously issued to it, the value of the Buyer Common Stock shall be (A) the value determined under Section 1.1(g) if the Buyer Common Stock was issued more than twelve (12) months prior to the stock return date, and (B) the value as of the date of the issuance to the Stockholders with respect to the Six-Month Stock Issuance, Annual Cash/Stock Payments or Performance Payments, as the case may be), will not be unreasonably withheld or delayed. The Indemnified Party will reasonably cooperate with if the Indemnifying Party at the Indemnifying Party’s expense and will make available Buyer Common Stock was issued less than twelve (12) months prior to the Indemnifying Party all pertinent information under the control of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnifying Party pursuant to this Section 15.3 (Indemnification Procedure)stock return date.
Appears in 1 contract
Indemnification Procedure. Each Party, if Upon receipt by the Party seeking indemnification under this Article 15 hereunder (Indemnification) (the an “Indemnified Party”)) of notice of any action, will suit, proceeding, claim, demand or assessment against such Indemnified Party which might give [**] rise to Damages, the Indemnified Party shall give prompt written notice of the claim thereof to the other Party from which indemnification is sought (the “Indemnifying Party”); provided) indicating the nature of the claim and the basis therefore, however, provided that any the failure or delay in providing to give such prompt notice will shall not relieve the Indemnifying Party of its indemnification obligation, obligations hereunder except to the extent it is actually prejudiced by such failure the Indemnifying Party or delay. Each Party will promptly furnish to the other Party copies of all papers and official documents received in respect defense of any Lossessuch claim is materially prejudiced thereby. The Indemnifying Party will shall have the right, exercisable at its option, to assume the defense of, at its own Cost and by written notice to its own counsel, any such claim involving the asserted liability of the Indemnified Party. If any Indemnifying Party shall undertake to compromise or defend any such asserted liability, it shall promptly notify the Indemnified Party of its intention to assume do so, and control the defense of the indemnification claim at its own expense Indemnified Party shall agree to cooperate fully with counsel selected by the Indemnifying Party and reasonably acceptable to its counsel in the Indemnified Partycompromise of, or defense against, any such asserted liability; provided, however, that an Indemnified Party will have the right to retain its own counsel, at its own expense, except that the fees and expenses of the Indemnified Party’s counsel will be paid by the Indemnifying Party if representation shall not, as part of such Indemnified Party by the counsel retained by any settlement or other compromise, (i) admit to liability for which the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceedings. If the Indemnifying Party does is not assume the defense of the indemnification claim as described in this Section 15.3 (Indemnification Procedure), then the Indemnified Party may defend the indemnification claim but will have no obligation to do so. The Indemnified Party will not settle or compromise the indemnification claim without the prior written consent of the Indemnifying Party, and the Indemnifying Party will not settle or compromise the indemnification claim in any manner that would have an adverse effect on the Indemnified Party’s interests (including any rights under this Agreement or the scope or enforceability of any Patents, Confidential Information, or other rights licensed to Licensee by ▇▇▇▇▇▇ hereunder), without the prior written consent of fully indemnifying the Indemnified Party, which consent, in each case (by the Indemnifying Party or Indemnified Party, as the case may be), will not be unreasonably withheld agree to an injunction or delayed. The Indemnified Party will reasonably cooperate other relief with the Indemnifying Party at the Indemnifying Party’s expense and will make available respect to the Indemnifying Party all pertinent information under the control activities of the Indemnified Party, which information will be subject to Article 14 (Confidentiality). The Indemnifying Party will provide periodic updates to the Indemnified Party (and its counsel, if applicable) regarding its defense of the action with immediate notice regarding any material developments. The Indemnifying Party will not be liable for any settlement or other disposition of Losses by the Indemnified Party if such settlement is reached without the written consent of the Indemnified Party or otherwise adversely affect the business of the Indemnified Party in any manner, admit to any violation of any Applicable Laws or any violation of the rights of any Person, or adversely affect the Indemnified Party’s rights under this Agreement. Notwithstanding an election by the Indemnifying Party pursuant to this Section 15.3 assume the defense of any claim as set forth above, such Indemnified Party shall have the right (Indemnification Procedure)at its own Cost if the Indemnifying Party has elected to assume such defense) to employ separate counsel and to participate in the defense of any claim.
Appears in 1 contract
Sources: Supply Agreement (Durect Corp)