Procedure for Claims. A Party required to make an indemnification payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the Indemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Cherkas Randolph), Merger Agreement (Global Telecommunication Solutions Inc)
Procedure for Claims. A Party required If a claim for Damages (a "Claim") is to make an be made under Article 8 by a person entitled to indemnification payment pursuant hereunder, the person claiming such indemnification (the "Indemnified Party") shall give written notice (a "Claim Notice") to this Agreement the indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2. The failure of any Indemnified Party to give timely notice hereunder shall have no liability with respect not affect rights to any claim or otherwise with respect indemnification hereunder, except and only to any covenantthe extent that, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) demonstrates actual material damage caused by such failure. In the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount case of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim involving the assertion of a person, firm, corporation or government entity other than claim by a party hereto or any affiliate of such third party (whether pursuant to a lawsuit or other legal action or otherwise, a "Third-Party ClaimsClaim"). With respect to Third-Party Claims, an Indemnified Party (a) shall give if the Indemnifying Party prompt notice shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of any Third-Party Claim, (b) prior to taking any action its indemnity hereunder in connection with respect to such Third-Party Claim, shall consult with then (A) the Indemnifying Party as to the procedure to shall be followed in defendingentitled and, settlingif it so elects, or compromising the Third-Party Claimshall be obligated at its own cost, risk and expense, (c1) shall not consent to any settlement or compromise take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the written consent of Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall but not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheldobligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 8.4, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall be entitled, at the Indemnifying Party's cost, risk and expense, to separate counsel of its own choosing. If the Indemnifying Party fails to assume the exclusive defense of such Third-Party Claim in accordance with this Section 8.4 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (includingupon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, except as provided compromise and settlement of such Third-Party Claim. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the penultimate sentence event the Indemnified Party assumes the defense of this Section 8.3the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement thereof) at its own cost and expensesettlement. The Indemnifying Party will not compromise or settle shall be liable for any settlement of any Third-Party Claim without effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal), and the written consent of the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party if the relief provided is other than monetary damages from and against any and all Damages by reason of such relief would materially adversely affect the Indemnified Partysettlement or judgment.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Intelligroup Inc), Purchase and Sale Agreement (Intelligroup Inc)
Procedure for Claims. A Party required If a claim for Damages (a "Claim") is to make an be made by a person entitled to indemnification payment pursuant hereunder, the person claiming such indemnification (the "Indemnified Party") shall give written notice (a "Claim Notice") to this Agreement the indemnifying person (the "Indemnifying Party") shall have no liability with respect promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation Damages for which indemnification may be sought under this Agreement unless Section 10.2 provided, that if the Indemnified Party entitled to receive such indemnification payment ("is an FRT Indemnified Party") gives , such Claim Notice shall be valid if it is delivered to the Stockholder Representative. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party demonstrates actual material damage caused by reason thereof under this Agreementsuch failure, and (iii) whether or not then only to the Claim is extent thereof. In the case of a Claim involving the assertion of a person, firm, corporation or government entity other than claim by a party hereto or any affiliate of such third party (whether pursuant to a lawsuit, other legal action or otherwise, a "Third-Party ClaimsClaim"). With respect to Third-Party Claims, an Indemnified Party (a) shall give if the Indemnifying Party prompt notice shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of any Third-Party Claim, (b) prior to taking any action its indemnity hereunder in connection with respect to such Third-Party Claim, shall consult with then (A) the Indemnifying Party as shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the procedure Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be followed unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in defendingaccordance with this Section 10.2(b), settlingthe Indemnified Party may, or compromising at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, (c) if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall not consent be entitled, at the Indemnifying Party's cost, risk and expense, to any settlement or compromise retain one firm of separate counsel of its own choosing. If the Indemnifying Party fails to assume the defense of such Third-Party Claim in accordance with this Section 10.2 within ten (10) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume . In the exclusive event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such Third-Party Claim (includingdefense, except as provided compromise or settlement, and in the penultimate sentence event the Indemnified Party assumes the defense of this Section 8.3the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement thereof) at its own cost and expensesettlement. The Indemnifying Party will not compromise or settle shall be liable for any settlement of any Third-Party Claim without effected pursuant to and in accordance with this Section 10.2 and for any final judgment (subject to any right of appeal), and the written consent of the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party if the relief provided is other than monetary damages from and against any and all Damages by reason of such relief would materially adversely affect the Indemnified Partysettlement or judgment.
Appears in 2 contracts
Sources: Merger Agreement (Freerealtime Com Inc), Merger Agreement (Freerealtime Com Inc)
Procedure for Claims. A In the event that an Indemnified Party required receives notice of, or becomes aware of, a claim for which the Indemnified Party intends to make an indemnification payment pursuant to this Agreement ("Indemnifying Party") seek indemnity hereunder, the Indemnified Party shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to promptly provide the Indemnifying Party specifying (i) with notice of such claim. The Indemnifying Party shall have the covenantright, representation at its option and its own expense, to be represented by counsel of its own choice and to defend against, negotiate, settle or warrantyotherwise deal with any such claim; provided, agreementhowever, undertaking that the Indemnifying Party’s right to defend any such action or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim claim shall be conditioned upon such Indemnifying Party providing the Indemnified Party may have against with written notice; provided, further, that the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to enter into any settlement or compromise of the Third-Party Claim any such claim without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's ’s prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume . The Indemnified Party may participate in the exclusive defense of any claim with counsel of its own choice and at its own expense. The parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third-claim. In the event that the Indemnifying Party Claim (includingdoes not undertake the defense, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of a claim, the Indemnified Party if shall have the relief provided is other than monetary damages and right to control the defense or settlement of such relief would materially adversely affect Claim with counsel of its choosing provided, however, that the Indemnified Party shall not settle or compromise any such claim without the Indemnifying Party’s prior written consent, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Unilens Vision Inc), Asset Purchase Agreement (Unilens Vision Inc)
Procedure for Claims. A Party required (a) NOTICE OF CLAIM. Promptly, but in any event within 30 days after obtaining knowledge of any claim or demand which may give rise to, or could reasonably give rise to, a claim for indemnification hereunder (any such claim an "Indemnification Claim"), the party or parties entitled to make an indemnification payment pursuant hereunder (the "Indemnified Party") shall give written notice to this Agreement the party or parties subject to indemnification obligations therefor (the "Indemnifying Party") of such Indemnification Claim (a "Notice of Claim"). A Notice of Claim shall be given with respect to all Indemnification Claims. However, the failure to timely give a Notice of Claim to the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party hereunder to the extent that the Indemnifying Party is not prejudiced by such failure. Subject to Section 10.1, no liability Indemnified Party shall be entitled to give a Notice of Claim with respect to any claim representation and warranty after the second anniversary of the Closing Date. The Notice of Claim shall set forth the amount (or otherwise with respect a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the Indemnified Party as a result of such Indemnification Claim and a brief description of the facts giving rise to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the such Indemnification Claim. The Indemnified Party entitled to receive such indemnification payment ("Indemnified Party") gives notice shall furnish to the Indemnifying Party specifying such information (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim ) as the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Indemnification Claim (includingincluding copies of any summons, except as provided in complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the Indemnified Partysame).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Galacticomm Technologies Inc), Stock Purchase Agreement (Galacticomm Technologies Inc)
Procedure for Claims. A Party required If a claim for Damages (a "Claim") is to make an be made by a person entitled to indemnification payment pursuant to this Agreement hereunder, the person claiming such indemnification (the "Indemnifying PartyINDEMNIFIED PARTY") shall have no liability with respect give written notice (a "CLAIM NOTICE") to the indemnifying person (the "INDEMNIFYING PARTY") as soon as practicable after the Indemnified Party becomes aware of any claim fact, condition or otherwise with respect event which may give rise to any covenant, representation, warranty, agreement, undertaking or obligation Damages for which indemnification may be sought under this Agreement unless Section 7.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or other legal action or otherwise, a "THIRD-PARTY CLAIM"), (A) the Indemnified Party shall be entitled and, if it so elects, shall be obligated at the Indemnifying Party's cost, risk and expense, (1) to receive take control of the defense and investigation of such indemnification payment Third-Party Claim and ("Indemnified Party"2) gives notice to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnifying Party specifying to handle and defend the same, and (iB) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnifying Party by reason thereof under this AgreementParty, and (iii) whether or such consent not to be unreasonably withheld. In the Claim is case of a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior the Indemnified Party may, in lieu of assuming the defense of such Third-Party Claim, elect, by delivering a Claim Notice to taking any action with respect the Indemnifying Party relating to such Third-Party Claim, shall consult with to require the Indemnifying Party as Party, at the Indemnifying Party's cost, risk and expense, (1) to take control of the procedure to be followed in defending, settling, or compromising the defense and investigation of such Third-Party Claim, (c2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (3) if the Indemnifying Party so desires, to compromise or settle such claim, which compromise or settlement shall not consent to any settlement or compromise of the Third-Party Claim without be made only with the written consent of the Indemnifying Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnified Party (which consent, unless elects that the Indemnifying Party has elected to assume control of the exclusive defense and investigation of such lawsuit or other legal action in accordance with this Section 7.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, shall not if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be unreasonably withheld one or delayed) and (d) shall permit more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, with the Indemnified Party shall be entitled, at the Indemnifying Party's prior written consentcost, which consent shall not be unreasonably withheldrisk and expense, if it so elects, to separate counsel of its own choosing. If the Indemnifying Party fails to assume the exclusive defense of such Third-Party Claim in accordance with this Section 7.2 after receipt from the Indemnified Party of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall at any time (includingupon delivering notice to such effect to the Indemnifying Party) have the right to undertake, except as provided at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party in the penultimate sentence manner and subject to the provisions set forth above with respect to the control of this Section 8.3such defense by the Indemnified Party. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement thereof) at its own cost settlement, and expensein the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party will not compromise or settle shall be liable for any settlement of any Third-Party Claim without effected pursuant to and in accordance with this Section 7.2 and for any final judgment (subject to any right of appeal), and the written consent of the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party if the relief provided is other than monetary damages from and against any and all Damages by reason of such relief would materially adversely affect the Indemnified Partysettlement or judgment.
Appears in 1 contract
Sources: Purchase Agreement (Immulogic Pharmaceutical Corp /De)
Procedure for Claims. A Party required The following procedures shall be applicable with respect to make an indemnification payment pursuant for claims arising in connection with any provision of this Agreement:
(a) Each indemnified party (the "Indemnified Party") agrees that upon its obtaining knowledge of facts indicating that there may be a basis for a claim for indemnity under the provisions of this Agreement, including receipt by it of notice of any demand, assertion, claim, action or proceeding, judicial or otherwise (these actions are collectively, the "Claim"), with respect to any matter as to which it may be entitled to indemnity under the provisions of this Agreement Agreement, it will give prompt notice thereof in writing to the other party (the "Indemnifying Party") together with a statement of all information respecting any of the foregoing as it shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the then have. The Indemnifying Party specifying (i) shall not be obligated to indemnify the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, Indemnified Party for the nature and dollar increased amount of any Claim which would otherwise have been payable to the extent that the increase in the amount of the Claim resulted from the lack of notice required by this provision.
(b) The Indemnifying Party shall in good faith at its sole cost and expense contest and defend by all appropriate legal proceedings, with counsel satisfactory to the Indemnified Party, any Claim with respect to which it is called upon to indemnify the Indemnified Party may have against under the provisions of this Agreement; provided, however, that notice of the intention so to contest shall be delivered by the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not to the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed within a reasonable time in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise light of the Third-Party Claim without circumstances then and there existing. Any contest may be conducted in the written consent name and on behalf of the Indemnifying Party or the Indemnified Party as may be appropriate. The contest shall be conducted by attorneys engaged by the Indemnifying Party, but the Indemnified Party shall have the right to participate in those proceedings and to be represented by attorneys of its own choosing at its cost and expense; provided, however, that, if the named parties to any such proceeding (which consent, unless including any impeaded parties) include both the Indemnifying Party has elected and the Indemnified Party or if the Indemnifying Party proposes that the same counsel. represent both the Indemnified Party and the Indemnifying Party and representation of both parties by the same counsel would be inappropriate due to assume actual or potential differing interests between them, then the exclusive defense Indemnified Party shall have the fight to retain its own counsel at the cost and expense of such Claimthe Indemnifying Party. If the Indemnified Party joins in any contest, the Indemnifying Party shall have full authority to determine all action to be taken; provided, however, that the Indemnified Party shall have the right to approve any settlement, which approval shall not be unreasonably withheld (it being understood that it shall not be unreasonable to withhold consent to any settlement involving injunctive or delayedother equitable relief).
(c) The Indemnified Party agrees to afford the Indemnifying Party and (d) its counsel the opportunity to be present at, and to participate in, conferences with all persons, including governmental authorities asserting any Claim against the Indemnified Party or conferences with representatives of or counsel for those persons. So long as the Indemnifying Party is defending in good faith that Claim, the Indemnified Party shall permit cooperate with and assist the Indemnifying Party to the extent reasonably possible, but the Indemnifying Party shall bear and pay any and all expenses incurred by the Indemnified Party in providing such cooperation and assistance, either directly or upon request of the Indemnified Party. The Indemnified Party shall be kept fully informed of the defense of any Claim at all stages thereof. In the event that the Indemnifying Party fails to timely and in good faith defend against that Claim, the Indemnified Party shall have the right, but not the obligation, to defend the same and may make any compromise or settlement thereof and recover and be indemnified for the entire cost thereof from the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except but not limited to, legal expenses, disbursements and all amounts paid as provided in the penultimate sentence a result of this Section 8.3, the that Claim or any compromise or settlement thereof. If, in good faith, the Indemnified Party concludes that there are specific defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party, or that those Claims may have a material adverse effect on the Indemnified Party with respect to the scope of the foregoing indemnities, then the Indemnified Party shall have the right to direct the defense of that Claim and the Indemnifying Party shall bear the expenses thereof. In the event that the Indemnified Party is, directly or indirectly, conducting a defense against any such Claim, the Indemnifying Party shall cooperate with the Indemnified Party in that defense and make available to it all those witnesses, records, materials and information in its possession or under its control relating thereto.
(d) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of shall pay to the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect amount to which the Indemnified PartyParty may become entitled by reason of the provisions of Article VI of this Agreement within fifteen (15) business days after any the amount owed is finally determined either by mutual agreement of the parties to this Agreement or pursuant to the final unappealable judgment of a court of competent jurisdiction and the Indemnifying Party agrees to pay all costs and expenses in connection with obtaining any bond required to appeal any judgment.
Appears in 1 contract
Procedure for Claims. A Party required If a claim for Damages (a "Claim") is to make an be made under this Article 11 by a person entitled to indemnification payment pursuant hereunder, the person claiming such indemnification (the "Indemnified Party") shall give written notice (a "Claim Notice") to this Agreement the indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 11.2. The failure of any Indemnified Party to give timely notice hereunder shall have no liability with respect not affect rights to any claim or otherwise with respect indemnification hereunder, except and only to any covenantthe extent that, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) demonstrates actual material damage caused by such failure. In the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount case of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim involving the assertion of a person, firm, corporation or government entity other than claim by a party hereto or any affiliate of such third party (whether pursuant to a lawsuit or other legal action or otherwise, a "Third-Party ClaimsClaim"). With respect to Third-Party Claims, an Indemnified Party (a) shall give if the Indemnifying Party prompt notice shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of any Third-Party Claim, (b) prior to taking any action its indemnity hereunder in connection with respect to such Third-Party Claim, shall consult with then (A) the Indemnifying Party as to the procedure to shall be followed in defendingentitled and, settlingif it so elects, or compromising the Third-Party Claimshall be obligated at its own cost, risk and expense, (c1) shall not consent to any settlement or compromise take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the written consent of Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall but not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheldobligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 11.4, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall be entitled, at the Indemnifying Party's reasonable cost, risk and expense, to separate counsel of its own choosing. If the Indemnifying Party fails to assume the exclusive defense of such Third-Party Claim in accordance with this Section 11.4 within ten (including10) calendar days after receipt of the Claim Notice, except as provided the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise and settlement of such Third-Party Claim. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the penultimate sentence event the Indemnified Party assumes the defense of this Section 8.3the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement thereof) at its own cost and expensesettlement. The Indemnifying Party will not compromise or settle shall be liable for any settlement of any Third-Party Claim without effected pursuant to and in accordance with this Section 11.4 and for any final judgment (subject to any right of appeal), and the written consent of the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party if the relief provided is other than monetary damages from and against any and all Damages by reason of such relief would materially adversely affect the Indemnified Partysettlement or judgment.
Appears in 1 contract
Procedure for Claims. A In the event that any party (the "Indemnified Party") receives notice of, or becomes aware of, a claim for which the Indemnified Party required intends to make an indemnification payment pursuant to this Agreement seek indemnity hereunder, the Indemnified Party shall promptly provide the other party (the "Indemnifying Party") with notice of such claim. The Indemnifying Party shall have no liability with respect the right, at its option and its own expense, to any claim be represented by counsel of its own choice and to defend against, negotiate, settle or otherwise deal with respect to any covenantsuch claim, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to provided the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to enter into any settlement or compromise of any such claim which could lead to liability or create any financial or other obligation on the Third-part of the Indemnified Party Claim without the Indemnified Party's prior written consent consent. The Indemnified Party may participate in the defense of any claim with counsel of its own choice and at its own expense. The parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such claim. In the event that the Indemnifying Party (which consentdoes not undertake the defense, unless compromise or settlement of a claim, the Indemnified Party shall have the right to control the defense or settlement of such Claim with counsel of its choosing provided, however, that the Indemnified Party shall not settle or compromise any such claim without the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Implantable Visions, Inc.)
Procedure for Claims. A Party required (i) If a claim for Damages (a "Claim") is to make an be made by a person entitled to indemnification payment pursuant hereunder, the person claiming such indemnification (the "Indemnified Party"), subject to this Agreement clause (ii) below, shall give written notice (a "Claim Notice") to the indemnifying person (the "Indemnifying Party") shall have no liability with respect as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation Damages for which indemnification may be sought under this Agreement unless Section 6.4. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to extent that, the Indemnifying Party specifying (i) demonstrates actual material damage caused by such failure. In the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount case of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim involving the assertion of a person, firm, corporation or government entity other than claim by a party hereto or any affiliate of such third party (whether pursuant to a lawsuit or other legal action or otherwise, a "Third-Party ClaimsClaim"). With respect to Third-Party Claims, an Indemnified Party (a) shall give if the Indemnifying Party prompt notice shall acknowledge in writing to the Indemnified Party under the terms of any Third-Party Claim, (b) prior to taking any action its indemnity hereunder in connection with respect to such Third-Party Claim, shall consult with then (A) the Indemnifying Party as shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the procedure Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be followed unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in defendingaccordance with this Section 6.4, settlingthe Indemnified Party may, or compromising at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, (c) if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall not consent be entitled, at the Indemnifying Party's cost, risk and expense, to any settlement or compromise separate counsel of its own choosing. If the Indemnifying Party fails to assume the defense of such Third-Party Claim in accordance with this Section 6.4 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall, upon delivering notice to such effect to the Indemnifying Party, have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume . In the exclusive event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such Third-Party Claim (includingdefense, except as provided compromise or settlement, and in the penultimate sentence event the Indemnified Party assumes the defense of this Section 8.3the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement thereof) at its own cost and expensesettlement. The Indemnifying Party will not compromise or settle shall be liable for any settlement of any Third-Party Claim without effected pursuant to and in accordance with this Section 6.4 and for any final judgment (subject to any right of appeal), and the written consent Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.
(ii) Notwithstanding clause (i) above, in the event that the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the a TDT Indemnified Party, any Claim Notice, election or other notification or correspondence required pursuant to such clause (i) shall be valid if it is delivered to Kaplan Gottbetter & Levenson, LLP (the "Stockholder Representa▇▇▇▇"). ▇▇▇▇ Pr▇▇▇▇▇▇▇ Stockholder hereby irrevocably appoints the Stockholder Representative as its agent and attorney-in-fact with respect to the matters set forth in this Section 6.4, and hereby irrevocably grants to the Stockholder Representative the authority to administer Claims on behalf of such Stockholder, to exercise such other rights and powers as are set forth in this Agreement and to enter into, and to bind such Stockholder with respect to, the settlement of any such Claim. Each Stronghold Indemnified Party shall be entitled to rely on the agreements and representations of, and notices and other correspondence from, the Stockholder Representative as such agent and attorney-in-fact in connection with any Claim by or against any Stockholder pursuant to this Section 6.4.
Appears in 1 contract
Procedure for Claims. A Party required Promptly after receipt by any party entitled to make an indemnification payment pursuant to this Agreement paragraph (a) hereinabove (the "Indemnified Party") of notice of the commencement of any action asserting a claim based upon any cause enumerated herein, the Indemnified Party shall, if it claims the benefits of indemnification pursuant to Section 20(a) with respect to such action, notify the party from which such indemnification is sought (the "Indemnifying Party") shall have no liability with respect to any claim or otherwise with respect to any covenantof the commencement thereof. Upon receipt of such notice, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying shall have the option of either assuming the defense of such action (iand the cost thereof) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim with counsel reasonably satisfactory to both the Indemnified Party may have against and the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not participating in the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate defense of such party ("Third-Party Claims")action at the sole expense, however, of the Indemnifying Party. With respect to Third-Party ClaimsIn the event of the Indemnifying Party's assumption of the defense of such action, an counsel selected by the Indemnified Party (a) shall give may, at the election of the Indemnified Party, participate in any such defense, at the sole expense, however, of the Indemnified Party. No settlement or compromise to be paid by the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim entered into without the written consent of the Indemnifying Party (Indemnified Party, which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, consent shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aquis Communications Group Inc)
Procedure for Claims. A Party required to make an indemnification payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to Within thirty days after obtaining written notice of any claim or otherwise with respect to any covenantdemand which has given rise to, representationor could reasonably give rise to, warrantya claim for indemnification hereunder, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive party seeking indemnification shall give written notice of such indemnification payment claim ("Indemnified PartyNotice of Claim") gives notice to the Indemnifying Party specifying other party. The Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts employment has been breachedspecifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and a timely manner or (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect named parties to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to (including any impleaded parties) include both Purchaser and the company, and the indemnified party has been advised by such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise counsel that representation of the Third-Party Claim without Company and the written consent Purchaser by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnifying Party (which consentindemnifying party, unless the Indemnifying Party has elected indemnifying party shall have neither the right nor the obligation to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent action on behalf of the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the Indemnified Partyindemnified party).
Appears in 1 contract
Procedure for Claims. A Party required The following procedures shall be applicable with respect to make an indemnification payment pursuant for third party claims arising in connection with any provision of this Agreement, except for the provisions of Section 5.6 relating to Taxes:
(a) Each indemnified party hereunder ("Indemnified Party") agrees that upon its obtaining knowledge of facts indicating that there may be a basis for a claim for indemnity under the provisions of this Agreement Agreement, including receipt by it of notice of any demand, assertion, claim, action or proceeding, judicial or otherwise, by any third party (such third party actions being collectively referred to hereinafter as the "Claim"), with respect to any matter as to which it may be entitled to indemnity under the provisions of the Agreement, it will give prompt notice thereof in writing to the indemnifying party hereunder ("Indemnifying Party") together with a statement of such information respecting any of the foregoing as it shall have no liability with respect to then have.
(b) In the event of any claim or otherwise with respect to any covenantClaim, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Indemnified Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to and the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as each other regarding whether to the procedure settle or to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of contest and defend such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise is entitled at its cost and expense to contest and defend by appropriate legal proceeding any Claim; provided, however, that if the Claim involves any customer or settle any Third-Party Claim without the written consent client of the Indemnified Party if Seller Business or otherwise is of such a nature that its handling or outcome may have an adverse affect on the relief provided ownership and operation of the Seller Business subsequent to the Closing (such Claims are referred to as "Seller Business Claims" and all other Claims are referred to as "non-Seller Business Claims") then the Purchaser shall have the right to determine whether such Claim is other than monetary damages and such relief would materially adversely affect contested (unless the Indemnified Party.Seller can demonstrate to the Purchaser's satisfaction that such
Appears in 1 contract
Sources: Asset Purchase Agreement (Applied Graphics Technologies Inc)
Procedure for Claims. A Party required to make an (a) If a claim for indemnification payment pursuant to this Agreement Section 10.2 ("Indemnifying Party"a “Claim”) shall have no liability with respect is to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the be made by an Indemnified Party entitled to receive indemnification hereunder, the Indemnified Party claiming such indemnification payment ("Indemnified Party") gives shall give written notice to the other applicable Party (the “Indemnifying Party”) reasonably promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 10.2 or receipt by the Indemnified Party of notice of a claim brought pursuant to Section 10.2 involving the assertion of a claim by a Third Party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”). The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that the Indemnifying Party specifying actually suffers damage caused by such failure, and then only to the extent thereof. The Indemnifying Party shall have [***] days (or such lesser number of days set forth in the notice as may be required by court proceeding in the event of a litigated matter) after receipt of the notice to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim. In the case of a Third Party Claim, subject to the limitations of Section 10.2, the Party conducting the defense (the “Defending Party”) shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and, subject to the limitations of Section 10.2, (i) the covenant, representation other applicable Party (the “Non-Defending Party”) shall make available to the Defending Party any documents and materials in its or warranty, agreement, undertaking its Affiliates’ possession or obligation contained herein which it asserts has been breached, control that may be necessary to the defense of such Third Party Claim and (ii) in reasonable detail, the nature Defending Party shall keep the other Parties reasonably informed of all material developments and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of events relating to such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Third Party Claim, .
(b) prior to taking The Non-Defending Party, at its sole option and expense, may participate in any action defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third-Third Party Claim, shall consult . Except with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim without the written consent of the Indemnifying Non-Defending Party (which consent, unless the Indemnifying Party has elected not to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so electsdelayed or conditioned), to assume the exclusive Defending Party will not, in the defense of such Third-a Third Party Claim (includingClaim, except as provided in consent to the penultimate sentence entry of this Section 8.3, the any judgment or enter into any compromise or settlement (i) which does not include as an unconditional term thereof the giving to the Indemnified Party by the Third Party of a release from all liability with respect to such suit, claim, action, or proceeding; (ii) unless there is no finding or admission of (A) any violation of Law by the Indemnified Party (or any Affiliate thereof), (B) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without liability on the written consent part of the Indemnified Party if (or any Affiliate thereof) not indemnified hereunder or (C) any violation of the relief provided is rights of any Person and no effect on any other than monetary damages and such relief would materially adversely affect claims of a similar nature that may be made by the same Third Party against the Indemnified PartyParty (or any Affiliate thereof); or (iii) which exceeds the applicable indemnification limitations as set forth herein. No settlement or compromise of any Third Party Claim shall be deemed to determine the amount of Damages of the Indemnified Parties under this Article 10 unless the Non-Defending Party actually consents thereto.
Appears in 1 contract
Procedure for Claims. A An Indemnified Party required wishing to make an assert a claim for indemnification payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice Article VI, which does not constitute a third-party claim, shall deliver to the Indemnifying Party specifying a Claim Notice. Within thirty (i30) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detaildays after delivery of a Claim Notice, the nature and dollar amount of any Claim Indemnifying Party shall deliver to the Indemnified Party may have against a written response in which the Indemnifying Party by reason thereof under this Agreement, and shall: (iiiI) whether or not agree that the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party is entitled to receive all of the Claimed Amount (a) in which case such response shall give be accompanied by a payment by the Indemnifying Party prompt notice to the Indemnified Party of any Third-Party Claimthe Claimed Amount, by check or by wire transfer), (bII) prior agree that the Indemnified Party is entitled to taking any action with respect to receive the Agreed Amount (in which case such Third-Party Claim, response shall consult with be accompanied by a payment by the Indemnifying Party as to the procedure to be followed in defendingIndemnified Party of the Agreed Amount, settlingby check or by wire transfer), or compromising (III) contest that the Third-Indemnified Party Claim, (c) shall not consent is entitled to receive any settlement or compromise of the Third-Party Claim without the written consent of Claimed Amount. If the Indemnifying Party (which consentin such response contests the payment of all or part of the Claimed Amount, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party if shall use good faith efforts to resolve such dispute. If such dispute is not resolved within thirty (30) days following the relief provided is other than monetary damages delivery by the Indemnifying Party of such response, the Indemnifying Party and such relief would materially adversely affect the Indemnified PartyParty shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 11.12.
Appears in 1 contract
Procedure for Claims. A Party required to make an Whenever a claim arises for indemnification payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and the Party claiming a right to indemnification (iiithe “Indemnified Party”) whether or not will promptly notify the Claim Party from whom the Indemnified Party is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate claiming indemnification (the “Indemnifying Party”) of such party ("Third-Party Claims"). With respect claim and, when known, the facts constituting the basis for such claim; provided that the failure to Third-Party Claims, an Indemnified Party (a) shall give notify the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with will not relieve the Indemnifying Party as of any liability that it may have to the procedure Indemnified Party except to be followed the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In the event of any such claim for indemnification resulting from or arising in defendingconnection with a claim, settlingsuit or action by a third party, the Indemnifying Party may (but need not) defend or participate in the defense of any such claim, suit, or compromising action. The Indemnifying Party will be entitled to select counsel and take all steps necessary in the Third-defense thereof; provided, however, that the Indemnified Party Claimwill have the right, (c) shall not consent at its expense, to participate in any settlement or compromise such defense with the counsel of its choice but the fees and expenses of such counsel will be at the expense of the Third-Indemnified Party. All fees and expenses will be paid periodically as incurred. So long as the Indemnifying Party Claim is in good faith defending such claim or proceeding, the Indemnified Party will not compromise or settle such claim without the prior written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the prior written consent of the Indemnified Party, effect any settlement of any such claim unless such settlement includes an unconditional release of the Indemnified Party from all Losses that are the subject of or constitute a portion of such claim. If the Indemnified Party desires to compromise or settle any claim and gives written notice of such settlement or compromise to the Indemnifying Party, but the Indemnifying Party refuses to consent to such compromise or settlement, the Indemnifying Party will indemnify the Indemnified Party for any Losses in excess of the compromise or settlement proposed by the Indemnified Party without regard to whether the Indemnified Party is otherwise entitled to such indemnification under Section 11.(a) or Section 11.(b) of this Agreement, as applicable. If the Indemnifying Party does not assume the defense of any such claim, suit or action in accordance with this Section 11.(c), the Indemnified Party may, at the Indemnifying Party’s expense, defend against such claim, suit or action in such manner as it may deem appropriate, including, but not limited to, settling such claim, suit or action (after giving prior written notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate. Any such settlement or compromise of, or any final judgment or decree entered on or in, any claim, suit or action which the Indemnified Party has defended in accordance herewith, will be deemed to have been consented to by, and will be binding upon, the Indemnifying Party as fully as if the relief provided Indemnifying Party had assumed the defense thereof and a final judgment or decree had been entered in such suit or action, or with regard to such claim, by a court of competent jurisdiction for the amount of such settlement, compromise, judgment or decree. The Indemnified Party and the Indemnifying Party will cooperate, without prejudice to any rights they may have against each other, in the compromise or defense of any third party claim that is other than monetary damages and such relief would materially adversely affect not entirely subject to indemnification by a single Indemnifying Party. If, after the Indemnifying Party elects to assume the defense of a claim, it is determined by dispute resolution in accordance with Section 12. of this Agreement that the Indemnified Party.Party is not entitled to indemnification with respect thereto, the Indemnifying Party will discontinue the defense thereof
Appears in 1 contract
Sources: Private Label Credit Card Program Agreement (Zale Corp)
Procedure for Claims. (a) A Party required to make an seeking indemnification payment pursuant to this Agreement Sections 6.1 or 6.2 ("the “Indemnified Party”) shall promptly provide written notification to the Party from whom indemnification is sought (the “Indemnifying Party"”) of the assertion by a Third Party of any Claims or Losses for which indemnification may be sought (failure by the Indemnified Party to give such notification shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or not relieve the Indemnifying Party of its indemnification obligation under this Agreement unless except and only to the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to extent the Indemnifying Party specifying is actually prejudiced as a result of such failure to give such notification);
(ib) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, Within thirty (ii30) days of written notification provided in reasonable detail6.3a, the nature and dollar amount Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of any Claim Claims and Losses and propose counsel, and will consult with the Indemnified Party may have against with respect to a possible conflict of interest of counsel proposed by the Indemnifying Party. The proposed counsel shall be deemed accepted by the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not unless the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party upon reasonable grounds object to proposed counsel within fifteen (a15) shall give days of notification. If the Indemnifying Party prompt notice does not assume control of any Third-such defense, the Indemnified Party Claim, (b) prior to taking any action with respect to shall control such Third-Party Claim, shall consult with defense at the expense of the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, Party;
(c) The Party controlling defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party with respect thereto. Such other Party shall cooperate as may be reasonably requested by the Party controlling such defense in connection with or in furtherance of such defense. The Party not controlling defense may participate therein at its own expense;
(d) The Indemnifying Party shall not consent agree to any settlement of such action, suit, proceeding or compromise of the Third-Party Claim claim without the prior written consent of the Indemnifying Party (Indemnified Party, which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will shall not compromise agree to any settlement of such action, suit, proceeding or settle claim or consent to any Third-judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party Claim from all Claims and Losses with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed; and
(e) If the Parties cannot agree as to the application of Sections 6.1, 6.2, or 6.3 to any Claims and Losses, pending resolution of such disagreement pursuant to Section 7.6, the Parties may conduct separate defenses of such Claims and Losses, with each Party if retaining the relief provided is right to claim indemnification from the other than monetary damages and such relief would materially adversely affect Party in accordance with Sections 6.1 or 6.2, or upon resolution of the Indemnified Partyunderlying Claim.
Appears in 1 contract
Procedure for Claims. A Party required If, after the Effective Date, any legal proceeding shall be instituted or any Claim shall be asserted by any Person in respect of which indemnification may be sought under this Section 8, the party seeking indemnification ("Claiming Party") shall promptly and (subject to make an Section 8(f) below) in no event more than fifteen (15) days after such knowledge cause written notice thereof to be given to the party against whom indemnification payment pursuant to this Agreement is sought ("Indemnifying Party") shall have no liability with respect to any claim ). In the event of such Claim or otherwise with respect to any covenantlegal proceeding, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) shall have the covenantright, representation but not the obligation, to employ at its expense such counsel as is reasonably acceptable to the Claiming Party to defend any such Claim or warrantylegal proceeding asserted against it, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) and such Claiming Party shall have the right to participate in reasonable detail, the nature and dollar amount defense of any such Claim the Indemnified Party may have against or legal proceeding; and, so long as the Indemnifying Party by reason thereof under this Agreementis defending such Claim or legal proceeding in good faith, the Claiming Party will be responsible for any of its own attorney's fees and expenses in connection with such participation, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Claiming Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement settle such Claim or compromise of the Third-Party Claim legal proceeding without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not unreasonably be withheld. If in the course of defending any Claim or legal proceeding, the Indemnifying Party presents a settlement ("Settlement") to the Claiming Party which the Claiming Party unreasonably withheldrefuses to accept, if it so electsfor whatever reason, the Indemnifying Party shall be relieved of its obligation to assume continue defending, at its expense, or paying expenses and fees associated with the exclusive continued defense of such Third-Party the Claim (including, except as provided in or legal proceeding on behalf of the penultimate sentence Claiming Party. Upon resolution of this Section 8.3the Claim or legal proceeding, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-shall pay to the Claiming Party Claim without the written consent lesser of (i) the Settlement amount stated above and (ii) the amount for which the Claiming Party has been determined liable plus legal fees and expenses of the Indemnified Party if Claiming Party. Each party shall use reasonable efforts to keep the relief provided other party hereto fully informed as to the status of any such Claim or legal proceeding for which it is other than monetary damages and such relief would materially adversely affect the Indemnified Partyconducting a defense.
Appears in 1 contract
Procedure for Claims. A Party required to make an All claims for indemnification payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation made under this Agreement unless the Party entitled resulting from, related to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount arising out of any Claim the Indemnified Party may have a third-party claim against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (aas defined below) shall be made in accordance with the following procedures. A person entitled to indemnification under this Section 10 (an “Indemnified Party”) shall give prompt written notification to the person from whom indemnification is sought (the “Indemnifying Party”). Failure to so notify the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with will not relieve the Indemnifying Party as of any liability which the Indemnifying Party might have, except to the procedure extent that such failure materially prejudices the Indemnifying Party’s legal rights. The Indemnifying Party will assume control of the defense of such claim. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall be entitled to be followed in defendingcontrol such defense at the Indemnifying Party’s expense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, settlingsuit, proceeding or compromising claim and the Third-defense thereof and shall consider recommendations made by the other Party Claim, (c) with respect thereto. The Indemnified Party shall not consent agree to any settlement of such action, suit, proceeding or compromise of the Third-Party Claim claim without the prior written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall will not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise conditioned or settlement thereof) at its own cost and expensedelayed. The Indemnifying Party will shall not compromise agree to any settlement of such action, suit, proceeding or settle claim that does not include a complete release of the Indemnified Party from all liability with respect thereto or that imposes any Third-liability or obligation on the Indemnified Party Claim without the prior written consent of the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed. Further, Licensee may not enter into any settlement or compromise that involves or affects any Trademark, Licensed Domain Name or Licensor Content without Licensor’s prior written approval.
Appears in 1 contract
Procedure for Claims. A If any member of the PDVSA-PG Group, Seller Group or Buyer Group, as the case may be, (an "Indemnitee") desires to assert a claim for indemnification under this Agreement, such Indemnitee shall promptly notify the Party required to make an indemnification payment pursuant to this Agreement from which the indemnity is sought (the "Indemnifying Party") of such claim, specifying the nature of such claim and the amount or the estimated amount thereof with reasonably detailed particulars to the extent then feasible, which claim shall not be conclusive of the final amount of such claim (the "Claim Notice"). The Indemnifying Party shall have no thirty (30) days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnitee whether or not it disputes its liability to the Indemnitee with respect to such claim and, if it does not dispute its liability with respect to such claim, whether or not it desires, at its sole cost and expense, to defend the Indemnitee against such claim; provided, however, that the Indemnitee is hereby authorized prior to and during the Notice Period to file any claim motion, answer or otherwise with respect other pleading which it shall deem necessary or appropriate to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless protect its interests. In the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to event that the Indemnifying Party specifying (i) notifies the covenantIndemnitee within the Notice Period that it does not dispute such liability and desires to defend against such claim, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party shall have the right to defend, by reason thereof under this Agreementappropriate proceedings, against any such claim and to employ counsel of its choice, and (iii) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) Indemnitee shall not consent to any settlement settle or compromise of the Third-Party Claim otherwise voluntarily satisfy such claim without the prior written consent of the Indemnifying Party (which consentParty. If the Indemnitee desires to participate in, unless the Indemnifying Party has elected to assume the exclusive but not control, any such defense of such Claimor settlement, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it may do so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The If the Indemnifying Party will disputes its liability with respect to such claim, or elects not compromise to defend against such claim, whether by not giving timely notice as provided above or settle any Third-Party Claim without otherwise, then the written consent of the Indemnified Party if the relief provided is other than monetary damages and Indemnitee shall defend such relief would materially adversely affect the Indemnified Partyclaim in good faith.
Appears in 1 contract
Sources: LNG Sites and Piers Agreement
Procedure for Claims. A For purposes hereof, a Party required claiming a right to make an indemnification payment pursuant shall be referred to this Agreement ("as the “Indemnified Party” and the Party against whom such indemnification claim is made shall be referred to as the “Indemnifying Party") shall have no liability ”; provided that, with respect to any notices, responses, consents or approvals (but for the avoidance of doubt, not indemnification) to be provided by or to (i) an Indemnifying Party in connection with a claim pursuant to Section 10.2(a) or otherwise with respect to any covenantSection 10.2(d), representation, warranty, agreement, undertaking or obligation under references in this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) shall mean the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, Representative and (ii) an Indemnified Party in reasonable detailconnection with a claim pursuant to Section 10.2(c), the nature and dollar amount of any Claim references in this Agreement to the Indemnified Party may have against shall mean the Representative. An Indemnified Party wishing to assert a claim for indemnification under Section 10.2 (other than a third-party claim covered by Section 10.3(b) below) shall deliver to the Indemnifying Party a certificate (an “Officer’s Certificate”) signed by reason thereof under this Agreementany officer of the Indemnified Party, and if a Purchaser Indemnified Party, or by the Representative, if a Securityholder Indemnified Party, (iiiA) whether or not the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, stating that an Indemnified Party has paid, sustained or incurred, or reasonably anticipates that it will have to pay, sustain or incur Indemnified Losses (athe aggregate amount of such Indemnified Losses being referred to as the “Claimed Amount”), (B) shall give specifying in reasonable detail the facts pertinent to such claim(s), the individual items of Indemnified Losses included in the amount so stated, the method of computation thereof and the basis for indemnification to which such item is related and (C) demanding payment of the Claimed Amount. Within twenty (20) Business Days after delivery of such Officer’s Certificate, the Indemnifying Party prompt notice of any Third-shall deliver to the Indemnified Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with a written response in which the Indemnifying Party as shall: (1) agree that the Indemnified Party is entitled to receive all of the Claimed Amount, (2) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the “Agreed Amount”) or (3) contest that the Indemnified Party is entitled to receive any of the Claimed Amount. In the case of (1) or (2) above where the Indemnified Party is a Purchaser Indemnified Party, the Representative and the Indemnified Party shall deliver to the procedure to be followed in defendingEscrow Agent, settling, or compromising the Third-Party Claim, within three (c3) shall not consent to any settlement or compromise Business Days following delivery of the Third-Party Claim without response, a written notice executed by both such parties instructing the written consent Escrow Agent to distribute to the Indemnified Party, from and to the extent of the Indemnity Escrow Amount, an amount equal to the Claimed Amount or Agreed Amount, as applicable. If the Indemnifying Party (which consentin such response contests the payment of all or part of the Claimed Amount, unless then the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party if the relief provided is other than monetary damages and shall use good faith efforts to resolve such relief would materially adversely affect the Indemnified Partydispute in accordance with Section 10.3(c) below.
Appears in 1 contract
Procedure for Claims. (a) A Party required to make an seeking indemnification payment pursuant to this Agreement Sections 6.1 or 6.2 ("the “Indemnified Party”) shall promptly provide written notification to the Party from whom indemnification is sought (the “Indemnifying Party"”) of the assertion by a Third Party of any Claims or Losses for which indemnification may be sought (failure by the Indemnified Party to give such notification shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or not relieve the Indemnifying Party of its indemnification obligation under this Agreement unless except and only to the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to extent the Indemnifying Party specifying is actually prejudiced as a result of such failure to give such notification);
(ib) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, Within thirty (ii30) days of written notification provided in reasonable detail6.3a, the nature and dollar amount Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of any Claim Claims and ▇▇▇▇▇▇ and propose counsel, and will consult with the Indemnified Party may have against with respect to a possible conflict of interest of counsel proposed by the Indemnifying Party. The proposed counsel shall be deemed accepted by the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not unless the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party upon reasonable grounds object to proposed counsel within fifteen (a15) shall give days of notification. If the Indemnifying Party prompt notice does not assume control of any Third-such defense, the Indemnified Party Claim, (b) prior to taking any action with respect to shall control such Third-Party Claim, shall consult with defense at the expense of the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, Party;
(c) The Party controlling defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party with respect thereto. Such other Party shall cooperate as may be reasonably requested by the Party controlling such defense in connection with or in furtherance of such defense. The Party not controlling defense may participate therein at its own expense;
(d) The Indemnifying Party shall not consent agree to any settlement of such action, suit, proceeding or compromise of the Third-Party Claim claim without the prior written consent of the Indemnifying Party (Indemnified Party, which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will shall not compromise agree to any settlement of such action, suit, proceeding or settle claim or consent to any Third-judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party Claim from all Claims and Losses with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed; and
(e) If the Parties cannot agree as to the application of Sections 6.1, 6.2, or 6.3 to any Claims and Losses, pending resolution of such disagreement pursuant to Section 7.6, the Parties may conduct separate defenses of such Claims and Losses, with each Party if retaining the relief provided is right to claim indemnification from the other than monetary damages and such relief would materially adversely affect Party in accordance with Sections 6.1 or 6.2, or upon resolution of the Indemnified Partyunderlying Claim.
Appears in 1 contract
Procedure for Claims. A Party required to make an indemnification payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim by a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice of any Third-Party Claim, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim without the written consent of the Indemnifying Party (which consent, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate last sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written writte consent of the Indemnified Party if the relief provided is other than monetary damages and such relief would materially adversely affect the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Global Telecommunication Solutions Inc)
Procedure for Claims. A An Indemnified Party required wishing to make an assert a claim for indemnification payment pursuant to under this Agreement ARTICLE IV ("Indemnifying Party"other than a claim for indemnification arising out of a third-party claim) shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice deliver to the Indemnifying Party specifying a Claim Notice. Within thirty (30) days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (i) agree that the covenantIndemnified Party is entitled to receive all of the Claimed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Claimed Amount, representation by check or warranty, agreement, undertaking or obligation contained herein which it asserts has been breachedby wire transfer), (ii) in reasonable detail, the nature and dollar amount of any Claim agree that the Indemnified Party may have against is entitled to receive the Agreed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by reason thereof under this Agreement, and check or by wire transfer) or (iii) whether or not contest that the Claim is a Claim a person, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give is entitled to receive any of the Claimed Amount. If the Indemnifying Party prompt notice in such response contests the payment of any Third-all or part of the Claimed Amount and the Indemnified Party Claimdisputes such response, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not resolved within sixty (60) days following the procedure to be followed in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim without the written consent of delivery by the Indemnifying Party (which consentof such response, unless the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party if shall each have the relief provided is other than monetary damages and right to submit such relief would materially adversely affect dispute to a court of competent jurisdiction in accordance with the Indemnified Partyprovisions of Section 9.11.
Appears in 1 contract
Sources: Asset Purchase Agreement (Higher One Holdings, Inc.)
Procedure for Claims. A An Indemnified Party required wishing to make an assert a claim for indemnification payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification payment ("Indemnified Party") gives notice Article V shall deliver to the Indemnifying Party specifying a written notice (a “Claim Notice”) which contains (i) a description and the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breachedamount (the “Claimed Amount”) of any Damages incurred by the Indemnified Party, (ii) in reasonable detail, the nature and dollar amount of any Claim a statement that the Indemnified Party may have against the Indemnifying Party by reason thereof is entitled to indemnification under this AgreementArticle V and a reasonable explanation of the basis therefor, and (iii) whether or not a demand for payment in the Claim amount of such Damages. If the Indemnified Party is a Claim a personBuyer and is seeking to enforce such claim pursuant to the Escrow Agreement, firm, corporation or government entity other than a party hereto or any affiliate of such party ("Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party (a) shall give the Indemnifying Party prompt notice shall deliver a copy of any Third-Party Claimthe Claim Notice to the Escrow Agent. Within 30 days after delivery of a Claim Notice, (b) prior to taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as shall deliver to the procedure to be followed Indemnified Party a written response in defending, settling, or compromising the Third-Party Claim, (c) shall not consent to any settlement or compromise of the Third-Party Claim without the written consent of which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which consent, unless case such response shall be accompanied by a payment by the Indemnifying Party has elected to assume the exclusive defense of such Claim, shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the penultimate sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the Indemnified Party of the Claimed Amount, by check or by wire transfer; provided that if the relief provided Indemnified Party is other than monetary damages a Buyer and is seeking to enforce such relief would materially adversely affect claim pursuant to the Escrow Agreement, the Indemnifying Party and the Indemnified PartyParty shall deliver to the Escrow Agent, within three days following the delivery of such response, a written notice executed by both parties instructing the Escrow Agent to disburse the Claimed Amount to such Buyer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer; provided that if the Indemnified Party is a Buyer and is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnifying Party and the Indemnified Party shall deliver to the Escrow Agent, within three days following the delivery of such response, a written notice executed by both parties instructing the Escrow Agent to disburse the Agreed Amount to such Buyer), or (III) contest that the Indemnified Party is entitled to receive any of the Claimed Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not resolved within 60 days following the delivery by the Indemnifying Party of such response, the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 9.12. If the Indemnified Party is a Buyer and is seeking to enforce the claim that is the subject of such dispute pursuant to the Escrow Agreement, the Indemnifying Party and the Indemnified Party shall deliver to the Escrow Agent, promptly following the resolution of the dispute pursuant to Section 9.12, a written notice executed by both parties instructing the Escrow Agent as to what (if any) portion of the Escrow Fund shall be disbursed to such Buyer (which notice shall be consistent with the terms of the resolution of the dispute).
Appears in 1 contract