Defense of Claims In connection with any claim that may give rise to indemnity under this Section 4.4 resulting from or arising out of any claim against an Indemnitee by a Person that is not a party hereto (a “Third Party Claim”), Indemnitor will have the right, but not the obligation, to assume the defense, compromise and settlement of such claim through counsel of its own choosing, by notifying the Indemnitee within 15 calendar days after Indemnitor’s receipt of the applicable Notice of Claim; provided, however, that (i) the counsel for Indemnitor who shall conduct the defense, compromise and settlement of such claims shall be reasonably satisfactory to the Indemnitee, (ii) the Indemnitee shall have the right, at its own expense, to participate in the defense of such claim and to employ counsel, separate from the counsel employed by Indemnitor, (iii) the Indemnitee shall cooperate in all reasonable respects with Indemnitor in connection with the defense, compromise and settlement of such claim, (iv) Indemnitor shall not consent to the entry of a judgment or enter into a compromise or settlement of any such claim which is subject to indemnification by Indemnitor hereunder, except with the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld) and the inclusion of an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (v) if the named parties to any Action (including any impleaded parties) include both Indemnitor and the Indemnitee, and the Indemnitee has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnitee that are different from or additional to those available to Indemnitor, the Indemnitee shall be entitled, at the expense of Indemnitor, to separate counsel of its own choosing (provided further that the Indemnitee shall not consent to the entry of a judgment or enter into a compromise or settlement of any such claim, except with the prior written consent of Indemnitor, which consent shall not be unreasonably withheld). If Indemnitor fails to assume the defense, compromise and settlement of such claim within 15 calendar days after Indemnitor’s receipt of the applicable Notice of Claim, the Indemnitee (upon delivering written notice to Indemnitor to such effect) shall have the right to undertake, at Indemnitor’s expense, the defense, compromise or settlement of such claim on behalf of Indemnitor; provided, however, that the Indemnitee shall not consent to the entry of a judgment or enter into a compromise or settlement of any such claim, except with the prior written consent of Indemnitor (which shall not be unreasonably withheld). In the event that the Indemnitee assumes that defense, compromise and settlement of such claim, the Indemnitee shall keep Indemnitor reasonably informed of the progress of any such defense, compromise or settlement. Indemnitor shall be liable for any compromise or settlement of any claim effected pursuant to and in accordance with this Section 4.4 and for any final judgment (subject to any right of appeal) and Indemnitor agrees to indemnify and hold harmless (subject to the terms and conditions of Section 4.4(a) or 4.4(b) above, as applicable) the Indemnitee from and against any Damages by reason of such compromise, settlement or judgment. Nothing contained in this Section 4.4(e) shall affect or otherwise modify the terms and conditions of Sections 4.4(a) or 4.4(b).
Claims Covered and Released 4.1 ▇▇▇▇▇▇▇’▇ Release of Proposition 65 Claims
Defense of Claim In case any claim, demand or deficiency (a “Claim”) is asserted or any action is commenced or notice is given of any administrative or other proceeding against a party hereto (“Indemnified Party”) in respect of which indemnity properly sought against the other party (“Indemnitor”) pursuant to this Agreement, Indemnified Party shall give prompt notice thereof in writing to Indemnitor. Within 30 days after receipt of such notice (or prior to such earlier date as any answer in any administrative or other proceeding is due), Indemnitor may give Indemnified Party written notice of its election to conduct the defense of such Claim at its own expense (and any separate counsel engaged by Indemnified Party shall be at its expense). If Indemnitor has given Indemnified Party such notice of election to conduct the defense, Indemnified Party shall nevertheless have the right to participate in the defense thereof, but such participation shall be solely at its expense. If Indemnitor shall not notify Indemnified Party in writing (within the time hereinabove provided) of its election to conduct the defense of such Claim, Indemnified Party may (but need not) conduct (at the expense of Indemnitor) the defense of any Claim. The party assuming the defense of a Claim hereunder (the “Defending Party”) shall notify the other party of its intention to settle, compromise or satisfy any such Claim and may make such settlement, compromise or satisfaction unless such other party (the “Assuming Party”) shall notify the Defending Party in writing (within 30 days after receipt of such notice of intention to settle, compromise or satisfy) of its election to assume (at its sole expense) the defense of any such Claim and promptly thereafter take appropriate action to implement such defense. The Assuming Party shall indemnify the Defending Party and hold it harmless against any losses in excess of the amount of losses the Defending Party would have incurred if the proposed settlement had been agreed to. Indemnified Party shall cooperate with Indemnitor in any defense, at Indemnitor’s cost, and Indemnified Party shall provide reasonable access to, and copies of, records requested by Indemnitor and shall provide the reasonable assistance of Indemnified Party’s employees in connection with any defense.
Notice and Defense of Claims As soon as reasonably practicable after receipt by the Indemnified Party of notice of any liability or claim incurred by or asserted against the Indemnified Party that is subject to indemnification under this Article III, the Indemnified Party shall give notice thereof to Contributor, including liabilities or claims to be applied against the indemnification deductible established pursuant to Section 3.4 hereof; provided that failure to give notice to Contributor will not relieve Contributor from any liability that it may have to any Indemnified Party, unless, and only to the extent that, such failure (a) shall have caused prejudice to the defense of such claim or (b) shall have materially increased the costs or potential liability of Contributor by reason of the inability or failure of Contributor (due to such lack of prompt notice) to be involved in any investigations or negotiations regarding any such claim. Such notice shall describe in reasonable detail the facts known to such Indemnified Party giving rise to such claim, and the amount or good faith estimate of the amount of Losses arising therefrom. Unless prohibited by law, such Indemnified Party shall deliver to Contributor, promptly after such Indemnified Party’s receipt thereof, copies of all notices and documents received by such Indemnified Party relating to such claim. The Indemnified Party shall permit Contributor, at Contributor’s option and expense, to assume the defense of any such claim by counsel selected by Contributor and reasonably satisfactory to the Indemnified Party, and to settle or otherwise dispose of the same; provided, however, that the Indemnified Party may at all times participate in such defense at its sole expense; and provided further, however, that Contributor shall not, in defense of any such claim, except with the prior written consent of the Indemnified Party in its sole and absolute discretion, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff in question to all Indemnified Parties a full and complete release of all liabilities in respect of such claims, or that does not result only in the payment of money damages which are paid (or deemed paid) in full by Contributor. If Contributor shall not have undertaken such defense within 20 days after such notice, or within such shorter time as may be reasonable under the circumstances to the extent required by applicable law, then the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such liability or claim on behalf of and for the account of Contributor and at Contributor’s sole cost and expense (subject to the limitations in Section 3.4 hereof).
Notice; Defense of Claims An indemnified party may make claims for indemnification hereunder by giving written notice thereof to the indemnifying party within the period in which indemnification claims can be made hereunder. If indemnification is sought for a claim or liability asserted by a third party, the indemnified party shall also give written notice thereof to the indemnifying party promptly after it receives notice of the claim or liability being asserted, but the failure to do so shall not relieve the indemnifying party from any liability except to the extent that it is prejudiced by the failure or delay in giving such notice. Such notice shall summarize the bases for the claim for indemnification and any claim or liability being asserted by a third party. Within 20 days after receiving such notice the indemnifying party shall give written notice to the indemnified party stating whether it disputes the claim for indemnification and whether it will defend against any third party claim or liability at its own cost and expense. If the indemnifying party fails to give notice that it disputes an indemnification claim within 20 days after receipt of notice thereof, it shall be deemed to have accepted and agreed to the claim, which shall become immediately due and payable. The indemnifying party shall be entitled to direct the defense against a third party claim or liability with counsel selected by it (subject to the consent of the indemnified party, which consent shall not be unreasonably withheld) as long as the indemnifying party is conducting a good faith and diligent defense. The indemnified party shall at all times have the right to fully participate in the defense of a third party claim or liability at its own expense directly or through counsel; provided, however, that if the named parties to the action or proceeding include both the indemnifying party and the indemnified party and the indemnified party is advised that representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the indemnified party may engage separate counsel at the expense of the indemnifying party. If no such notice of intent to dispute and defend a third party claim or liability is given by the indemnifying party, or if such good faith and diligent defense is not being or ceases to be conducted by the indemnifying party, the indemnified party shall have the right, at the expense of the indemnifying party, to undertake the defense of such claim or liability (with counsel selected by the indemnified party), and to compromise or settle it, exercising reasonable business judgment. If the third party claim or liability is one that by its nature cannot be defended solely by the indemnifying party, then the indemnified party shall make available such information and assistance as the indemnifying party may reasonably request and shall cooperate with the indemnifying party in such defense, at the expense of the indemnifying party.