Common use of Indemnification Limitations on Liability Clause in Contracts

Indemnification Limitations on Liability. 8.1 Context shall indemnify and hold harmless each of BioAtla and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“BioAtla Indemnitees”) from and against any and all losses, damages, obligations, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of Context or its Affiliates; (ii) any material breach by Context of this Agreement; and (iii) the manufacturing, development and commercialization activities (including packaging and storage of the Program Products) relating to the Program Products conducted by or on behalf of Context, its Affiliates or their Sublicensees. Notwithstanding the foregoing, Context shall have no obligations under this Section 8.1 with respect to any Losses for which BioAtla is required to indemnify the Context Indemnitees under Section 8.2 or which are the result of any fraud or wilful misconduct of BioAtla. 8.2 BioAtla shall indemnify and hold harmless each of Context and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“Context Indemnitees”) from and against any and all Losses resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of BioAtla or its Affiliates; (ii) any material breach by BioAtla of this Agreement; or (iii) any activities conducted by BioAtla or its Affiliates or licensees (excluding Context but including [***]) with respect to the Licensed Antibodies or Program Products prior to the Effective Date. Notwithstanding the foregoing, BioAtla shall have no obligations under this Section 8.2 with respect to any Losses for which Context is required to indemnify the BioAtla Indemnitees under Section 8.1 or which are the result of any fraud or wilful misconduct of Context. Additionally, if Context elects to enforce [***], BioAtla shall bear all of Context’s costs and expenses in connection therewith. EXECUTION VERSION 8.3 Neither Party shall be liable to compensate the other Party for any indirect, incidental, special, punitive, exemplary, speculative or consequential damages arising out of or in connection with this Agreement including, but not limited to, any loss of use, loss of opportunity, indirect loss of income or profit from third parties, irrespective of whether it had an advance notice of the possibility of any such damages. The foregoing limitations of liability shall not apply with respect to a Party’s fraud, gross negligence or wilful misconduct or breach of Section 10 (Confidential Information) or to indemnification for amounts paid or payable to Third Parties in respect of any Third Party claim for which indemnification hereunder is otherwise required or to any liability that may not be excluded under Applicable Law including liability for death or personal injury caused by a Party’s negligence. Notwithstanding anything to the contrary, each Party will have a full right of offset for all Losses which are subject to indemnification under this Article 8 against all amounts owed by such Party under this Agreement. 8.4 All indemnification claims in respect of a Party, its Affiliates, or their respective directors, officers, employees and agents shall be made solely by such Party to this Agreement (the “Indemnified Party”). A Party that intends to claim indemnification under this Section 8 shall promptly inform the indemnifying Party in writing of any Third Party claim, in respect of which the indemnitee intends to claim such indemnification. Any such indemnification notice shall contain a description of the claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known at such time). The Indemnified Party shall furnish promptly to the indemnifying Party copies of all papers and official documents received in respect of any Losses and Third Party claims. The Indemnified Party shall provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense, in connection with the defense of the Third Party claim for which indemnity is being sought, including providing such records, information, testimony, or witnesses and attending such meetings, proceedings, hearings, trials and appeals as may be reasonably requested. The Indemnified Party may participate in and monitor such defense with counsel of its own choosing, which participation shall be at such Party’s sole expense except where (a) the appointment of such counsel for such purpose is authorised in writing by the indemnifying Party, (b) the indemnifying Party has failed to assume such defense, or (c) the interests of the Indemnified Party and indemnifying Party are sufficiently adverse to prohibit their representation by the same counsel. In the event of (a) to (c), the reasonable costs and expenses incurred by the Indemnified Party in connection with the Third Party claim shall be reimbursed by the indemnifying Party on a Calendar Quarter basis in arrears. At its option so long as the Litigation Condition described below is satisfied, the indemnifying Party shall have the right to assume and conduct the defense of the Third Party claim with counsel of its choice reasonably acceptable to the Indemnified Party, by giving written notice to the Indemnified Party within thirty (30) days after the indemnifying Party’s receipt of an indemnification notice. The assumption of the defense of a Third Party claim by the indemnifying Party shall not be construed as an acknowledgment that the indemnifying Party is liable to indemnify the Indemnified Party in respect of the Third Party claim, nor shall it constitute a waiver by the indemnifying Party of any defenses it may assert against the Indemnified Party’s claim for indemnification. If it is ultimately determined that the indemnifying Party is not obligated to indemnify, defend or hold harmless the Indemnified Party from and against the Third Party claim, the Indemnified Party shall reimburse the indemnifying Party for any Losses incurred by the indemnifying Party in its defense of the Third Party claim, including any costs and expenses paid by the indemnifying Party to the Indemnified Party in accordance with this Section. In the event the indemnifying Party assumes the defense of a Third Party claim made against the Indemnified Party hereunder: (a) with respect to any Losses relating solely to the payment of money damages in connection with such Third Party claim (i.e. that shall not result in the Indemnified Party becoming subject to injunctive or other relief), the indemnifying Party shall have the sole right to enter into any settlement or otherwise dispose of such claim so long as the Indemnified Party is not subject to any liability or obligation to pay any amounts (the “Litigation Condition”); and (b) in respect of any other Losses, the indemnifying Party shall EXECUTION VERSION not enter into a settlement or otherwise dispose of the claim without obtaining the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the indemnifying Party does not assume and conduct the defense of a Third Party claim as provided above, the Indemnified Party may defend against such Third Party claim, provided that the Indemnified Party may not admit any liability with respect to, or settle, compromise or dispose of, any Third Party claim without the prior written consent of the indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The failure to deliver written notice to the indemnitor within a reasonable time after the commencement of any action with respect to a Third Party claim shall only relieve the indemnitor of its indemnification obligations under this Section 8 if and to the extent the indemnitor is actually and materially prejudiced thereby.

Indemnification Limitations on Liability. 8.1 Context shall indemnify and hold harmless each of BioAtla and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“BioAtla Indemnitees”) from and against any and all losses, damages, obligations, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of Context or its Affiliates; (ii) any material breach by Context of this Agreement; and (iii) the manufacturing, development and commercialization activities (including packaging and storage of the Program Products) relating to the Program Products conducted by or on behalf of Context, its Affiliates or their Sublicensees. Notwithstanding the foregoing, Context shall have no obligations under this Section 8.1 with respect to any Losses for which BioAtla is required to indemnify the Context Indemnitees under Section 8.2 or which are the result of any fraud or wilful misconduct of BioAtla. 8.2 BioAtla shall indemnify and hold harmless each of Context and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“Context Indemnitees”) from and against any and all Losses resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of BioAtla or its Affiliates; (ii) any material breach by BioAtla of this Agreement; or (iii) any activities conducted by BioAtla or its Affiliates or licensees (excluding Context but including [***]) with respect to the Licensed Antibodies or Program Products prior to the Effective Date. Notwithstanding the foregoing, BioAtla shall have no obligations under this Section 8.2 with respect to any Losses for which Context is required to indemnify the BioAtla Indemnitees under Section 8.1 or which are the result of any fraud or wilful misconduct of Context. Additionally, if Context elects to enforce [***], BioAtla shall bear all of Context’s costs and expenses in connection therewith. EXECUTION VERSION. 8.3 Neither Party shall be liable to compensate the other Party for any indirect, incidental, special, punitive, exemplary, speculative or consequential damages arising out of or in connection with this Agreement including, but not limited to, any loss of use, loss of opportunity, indirect loss of income or profit from third parties, irrespective of whether it had an advance notice of the possibility of any such damages. The foregoing limitations of liability shall not apply with respect to a Party’s fraud, gross negligence or wilful misconduct or breach of Section 10 (Confidential Information) or to indemnification for amounts paid or payable to Third Parties in respect of any Third Party claim for which indemnification hereunder is otherwise required or to any liability that may not be excluded under Applicable Law including liability for death or personal injury caused by a Party’s negligence. Notwithstanding anything to the contrary, each Party will have a full right of offset for all Losses which are subject to indemnification under this Article 8 against all amounts owed by such Party under this Agreement. 8.4 All indemnification claims in respect of a Party, its Affiliates, or their respective directors, officers, employees and agents shall be made solely by such Party to this Agreement (the “Indemnified Party”). A Party that intends to claim indemnification under this Section 8 shall promptly inform the indemnifying Party in writing of any Third Party claim, in respect of which the indemnitee intends to claim such indemnification. Any such indemnification notice shall contain a description of the claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known at such time). The Indemnified Party shall furnish promptly to the indemnifying Party copies of all papers and official documents received in respect of any Losses and Third Party claims. The Indemnified Party shall provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense, in connection with the defense of the Third Party claim for which indemnity is being sought, including providing such records, information, testimony, or witnesses and attending such meetings, proceedings, hearings, trials and appeals as may be reasonably requested. The Indemnified Party may participate in and monitor such defense with counsel of its own choosing, which participation shall be at such Party’s sole expense except where (a) the appointment of such counsel for such purpose is authorised in writing by the indemnifying Party, (b) the indemnifying Party has failed to assume such defense, or (c) the interests of the Indemnified Party and indemnifying Party are sufficiently adverse to prohibit their representation by the same counsel. In the event of (a) to (c), the reasonable costs and expenses incurred by the Indemnified Party in connection with the Third Party claim shall be reimbursed by the indemnifying Party on a Calendar Quarter basis in arrears. At its option so long as the Litigation Condition described below is satisfied, the indemnifying Party shall have the right to assume and conduct the defense of the Third Party claim with counsel of its choice reasonably acceptable to the Indemnified Party, by giving written notice to the Indemnified Party within thirty (30) days after the indemnifying Party’s receipt of an indemnification notice. The assumption of the defense of a Third Party claim by the indemnifying Party shall not be construed as an acknowledgment that the indemnifying Party is liable to indemnify the Indemnified Party in respect of the Third Party claim, nor shall it constitute a waiver by the indemnifying Party of any defenses it may assert against the Indemnified Party’s claim for indemnification. If it is ultimately determined that the indemnifying Party is not obligated to indemnify, defend or hold harmless the Indemnified Party from and against the Third Party claim, the Indemnified Party shall reimburse the indemnifying Party for any Losses incurred by the indemnifying Party in its defense of the Third Party claim, including any costs and expenses paid by the indemnifying Party to the Indemnified Party in accordance with this Section. In the event the indemnifying Party assumes the defense of a Third Party claim made against the Indemnified Party hereunder: (a) with respect to any Losses relating solely to the payment of money damages in connection with such Third Party claim (i.e. that shall not result in the Indemnified Party becoming subject to injunctive or other relief), the indemnifying Party shall have the sole right to enter into any settlement or otherwise dispose of such claim so long as the Indemnified Party is not subject to any liability or obligation to pay any amounts (the “Litigation Condition”); and (b) in respect of any other Losses, the indemnifying Party shall EXECUTION VERSION not enter into a settlement or otherwise dispose of the claim without obtaining the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the indemnifying Party does not assume and conduct the defense of a Third Party claim as provided above, the Indemnified Party may defend against such Third Party claim, provided that the Indemnified Party may not admit any liability with respect to, or settle, compromise or dispose of, any Third Party claim without the prior written consent of the indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The failure to deliver written notice to the indemnitor within a reasonable time after the commencement of any action with respect to a Third Party claim shall only relieve the indemnitor of its indemnification obligations under this Section 8 if and to the extent the indemnitor is actually and materially prejudiced thereby.

Indemnification Limitations on Liability. 8.1 Context 9.1 Biodexa shall indemnify and hold harmless each of BioAtla Emtora and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“BioAtla Emtora Indemnitees”) from and against any and all losses, damages, obligations, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this the Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of Context Biodexa or its Affiliates; (ii) any material breach by Context Biodexa of its representations, warranties or obligations pursuant to this Agreement; and (iii) the manufacturing, development and commercialization activities (including packaging and storage of the Program ProductsProduct) relating to the Program Products Product conducted by or on behalf of ContextBiodexa, its Affiliates or their Sublicensees; and (iv) any Third Party Intellectual Property Rights infringement action in respect of the Biodexa Trade Marks; and (v) the packaging of the Products. Notwithstanding the foregoing, Context Biodexa shall have no obligations under this Section 8.1 9.1 with respect to any Losses for which BioAtla Emtora is required to indemnify the Context Biodexa Indemnitees under Section 8.2 9.2 or which are the result of any fraud or wilful misconduct of BioAtlaEmtora. 8.2 BioAtla 9.2 Emtora shall indemnify and hold harmless each of Context Biodexa and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“Context Biodexa Indemnitees”) from and against any and all Losses resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of BioAtla Emtora or its Affiliates; (ii) any material breach by BioAtla Emtora of its representations or warranties pursuant to this Agreement; or and (iii) any activities conducted amounts owed by BioAtla or its Affiliates or licensees (excluding Context but including [***]) with respect to Emtora under the Licensed Antibodies or Program Products CPRIT Grant, UT License and Emtora Noteholder Royalty prior to the Effective Date. Notwithstanding the foregoing, BioAtla Emtora shall have no obligations under this Section 8.2 9.2 with respect to any Losses for which Context Biodexa is required to indemnify the BioAtla Emtora Indemnitees under Section 8.1 9.1 or which are the result of any fraud or wilful misconduct of Context. Additionally, if Context elects to enforce [***], BioAtla shall bear all of Context’s costs and expenses in connection therewith. EXECUTION VERSIONBiodexa. 8.3 9.3 Neither Party shall be liable to compensate the other Party for any indirect, incidental, special, punitive, exemplary, speculative or consequential damages arising out of or in connection with this Agreement including, but not limited to, any loss of use, loss of opportunity, indirect loss of income or profit from third parties, irrespective of whether it had an advance notice of the possibility of any such damages. The foregoing limitations of liability shall not apply with respect to a Party’s fraud, gross negligence or wilful misconduct or breach of Section 10 11 (Confidential Information) or to indemnification for amounts paid or payable to Third Parties in respect of any Third Party claim for which indemnification hereunder is otherwise required or to any liability that may not be excluded under Applicable Law including liability for death or personal injury caused by a Party’s gross negligence. Notwithstanding anything to the contrary, each Party will have a full right of offset for all Losses which are subject to indemnification under this Article 8 against all amounts owed by such Party under this Agreement. 8.4 9.4 All indemnification claims in respect of a Party, its Affiliates, or their respective directors, officers, employees and agents shall be made solely by such Party to this Agreement (the “Indemnified Party”). A Party that intends to claim indemnification under this Section 8 9 shall promptly inform the indemnifying Party in writing of any Third Party claim, in respect of which the indemnitee intends to claim such indemnification. Any such indemnification notice shall contain a description of the claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known at such time). The Indemnified Party shall furnish promptly to the indemnifying Party copies of all papers and official documents received in respect of any Losses and Third Party claims. The Indemnified Party shall provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense, in connection with the defense of the Third Party claim for which indemnity is being sought, including providing such records, information, testimony, or witnesses and attending such meetings, proceedings, hearings, trials and appeals as may be reasonably requested. The Indemnified Party may participate in and monitor such defense with counsel of its own choosing, which participation shall be at such Party’s sole expense except where (a) the appointment of such counsel for such purpose is authorised in writing by the indemnifying Party, (b) the indemnifying Party has failed to assume such defense, or (c) the interests of the Indemnified Party and indemnifying Party are sufficiently adverse to prohibit their representation by the same counsel. In the event of (a) to (c), the reasonable costs and expenses incurred by the Indemnified Party in connection with the Third Party claim shall be reimbursed by the indemnifying Party on a Calendar Quarter basis in arrears. At its option so long as the Litigation Condition described below is satisfied, the indemnifying Party shall have the right to assume and conduct the defense of the Third Party claim with counsel of its choice reasonably acceptable to the Indemnified Party, by giving written notice to the Indemnified Party within thirty (30) days after the indemnifying Party’s receipt of an indemnification notice. The assumption of the defense of a Third Party claim by the indemnifying Party shall not be construed as an acknowledgment that the indemnifying Party is liable to indemnify the Indemnified Party in respect of the Third Party claim, nor shall it constitute a waiver by the indemnifying Party of any defenses it may assert against the Indemnified Party’s claim for indemnification. If it is ultimately determined that the indemnifying Party is not obligated to indemnify, defend or hold harmless the Indemnified Party from and against the Third Party claim, the Indemnified Party shall reimburse the indemnifying Party for any Losses incurred by the indemnifying Party in its defense of the Third Party claim, including any costs and expenses paid by the indemnifying Party to the Indemnified Party in accordance with this Section. In the event the indemnifying Party assumes the defense of a Third Party claim made against the Indemnified Party hereunder: (a) with respect to any Losses relating solely to the payment of money damages in connection with such Third Party claim (i.e. that shall not result in the Indemnified Party becoming subject to injunctive or other relief), the indemnifying Party shall have the sole right to enter into any settlement or otherwise dispose of such claim so long as the Indemnified Party is not subject to any liability or obligation to pay any amounts (the “Litigation Condition”); and (b) in respect of any other Losses, the indemnifying Party shall EXECUTION VERSION not enter into a settlement or otherwise dispose of the claim without obtaining the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the indemnifying Party does not assume and conduct the defense of a Third Party claim Claim as provided above, the Indemnified Party may defend against such Third Party claimClaim, provided that the Indemnified Party may not admit any liability with respect to, or settle, compromise or dispose of, any Third Party claim without the prior written consent of the indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The failure to deliver written notice to the indemnitor within a reasonable time after the commencement of any action with respect to a Third Party claim shall only relieve the indemnitor of its indemnification obligations under this Section 8 9 if and to the extent the indemnitor is actually and materially prejudiced thereby.

Indemnification Limitations on Liability. 8.1 Context ReproNovo shall indemnify and hold harmless each of BioAtla Mereo and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“BioAtla Mereo Indemnitees”) from and against any and all losses, damages, obligations, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this the Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of Context ReproNovo or its Affiliates; (ii) any material breach by Context ReproNovo of its representations, warranties or obligations pursuant to this Agreement; and (iii) the manufacturing, development and commercialization activities (including packaging and storage of the Program ProductsProduct) relating to the Program Products Product conducted by or on behalf of ContextReproNovo, its Affiliates or their Sublicensees; and (iv) any Third Party Intellectual Property Rights infringement action in respect of the ReproNovo Trade Marks; and (v) the packaging of the Products. Notwithstanding the foregoing, Context ReproNovo shall have no obligations under this Section 8.1 with respect to any Losses for which BioAtla Mereo is required to indemnify the Context ReproNovo Indemnitees under Section 8.2 or which are the result of any fraud or wilful misconduct of BioAtlaMereo. 8.2 BioAtla Mereo shall indemnify and hold harmless each of Context ReproNovo and its Affiliates and their respective directors, officers, stockholders, partners, employees, agents, successors and permitted assigns (“Context ReproNovo Indemnitees”) from and against any and all Losses resulting from, based on, or arising out of Third Party claims arising from: (i) the alleged or actual gross negligence, fraud or wilful misconduct of BioAtla Mereo or its Affiliates; and (ii) any material breach by BioAtla Mereo of its representations or warranties pursuant to this Agreement; or (iii) any activities conducted by BioAtla or its Affiliates or licensees (excluding Context but including [***]) with respect to the Licensed Antibodies or Program Products prior to the Effective Date. Notwithstanding the foregoing, BioAtla Mereo shall have no obligations under this Section 8.2 with respect to any Losses for which Context ReproNovo is required to indemnify the BioAtla Mereo Indemnitees under Section 8.1 or which are the result of any fraud or wilful misconduct of Context. Additionally, if Context elects to enforce [***], BioAtla shall bear all of Context’s costs and expenses in connection therewith. EXECUTION VERSIONReproNovo. 8.3 Neither Party shall be liable to compensate the other Party for any indirect, incidental, special, punitive, exemplary, speculative or consequential damages arising out of or in connection with this Agreement including, but not limited to, any loss of use, loss of opportunity, indirect loss of income or profit from third parties, irrespective of whether it had an advance notice of the possibility of any such damages. The foregoing limitations of liability shall not apply with respect to a Party’s fraud, gross negligence or wilful misconduct or breach of Section 10 (Confidential Information) or to indemnification for amounts paid or payable to Third Parties in respect of any Third Party claim for which indemnification hereunder is otherwise required or to any liability that may not be excluded under Applicable Law including liability for death or personal injury caused by a Party’s 's negligence. Notwithstanding anything to the contrary, each Party will have a full right of offset for all Losses which are subject to indemnification under this Article 8 against all amounts owed by such Party under this Agreement. 8.4 All indemnification claims in respect of a Party, its Affiliates, or their respective directors, officers, employees and agents shall be made solely by such Party to this Agreement (the “Indemnified Party”). A Party that intends to claim indemnification under this Section 8 shall promptly inform the indemnifying Party in writing of any Third Party claim, in respect of which the indemnitee intends to claim such indemnification. Any such indemnification notice shall contain a description of the claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known at such time). The Indemnified Party shall furnish promptly to the indemnifying Party copies of all papers and official documents received in respect of any Losses and Third Party claims. The Indemnified Party shall provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense, in connection with the defense of the Third Party claim for which indemnity is being sought, including providing such records, information, testimony, or witnesses and attending such meetings, proceedings, hearings, trials and appeals as may be reasonably requested. The Indemnified Party may participate in and monitor such defense with counsel of its own choosing, which participation shall be at such Party’s 's sole expense except where (a) the appointment of such counsel for such purpose is authorised in writing by the indemnifying Party, (b) the indemnifying Party has failed to assume such defense, or (c) the interests of the Indemnified Party and indemnifying Party are sufficiently adverse to prohibit their representation by the same counsel. In the event of (a) to (c), the reasonable costs reasonablecosts and expenses incurred by the Indemnified Party in connection with the Third Party claim shall be reimbursed by the indemnifying Party on a Calendar Quarter basis in arrears. At its option so long as the Litigation Condition described below is satisfied, the indemnifying Party shall have the right to assume and conduct the defense of the Third Party claim with counsel of its choice reasonably acceptable to the Indemnified Party, by giving written notice to the Indemnified Party within thirty (30) days after the indemnifying Party’s receipt of an indemnification notice. The assumption of the defense of a Third Party claim by the indemnifying Party shall not be construed as an acknowledgment that the indemnifying Party is liable to indemnify the Indemnified Party in respect of the Third Party claim, nor shall it constitute a waiver by the indemnifying Party of any defenses it may assert against the Indemnified Party’s claim for indemnification. If it is ultimately determined that the indemnifying Party is not obligated to indemnify, defend or hold harmless the Indemnified Party from and against the Third Party claim, the Indemnified Party shall reimburse the indemnifying Party for any Losses incurred by the indemnifying Party in its defense of the Third Party claim, including any costs and expenses paid by the indemnifying Party to the Indemnified Party in accordance with this Section. In the event the indemnifying Party assumes the defense of a Third Party claim made against the Indemnified Party hereunder: (a) with respect to any Losses relating solely to the payment of money damages in connection with such Third Party claim (i.e. that shall not result in the Indemnified Party becoming subject to injunctive or other relief), the indemnifying Party shall have the sole right to enter into any settlement or otherwise dispose of such claim so long as the Indemnified Party is not subject to any liability or obligation to pay any amounts (the “Litigation Condition”); and (b) in respect of any other Losses, the indemnifying Party shall EXECUTION VERSION not enter into a settlement or otherwise dispose of the claim without obtaining the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the indemnifying Party does not assume and conduct the defense of a Third Party claim Claim as provided above, the Indemnified Party may defend against such Third Party claimClaim, provided that the Indemnified Party may not admit any liability with respect to, or settle, compromise or dispose of, any Third Party claim without the prior written consent of the indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The failure to deliver written notice to the indemnitor within a reasonable time after the commencement of any action with respect to a Third Party claim shall only relieve the indemnitor of its indemnification obligations under this Section 8 if and to the extent the indemnitor is actually and materially prejudiced thereby.