Indemnification: Settlement

Indemnification: Settlement

As demonstrated in the following exemplars, an indemnifying party’s right to settle a claim will usually be subject to the right of the indemnified party’s right to consent to the settlement terms. An indemnified party will usually not agree to terms that require such party to pay any money or to admit to any fault:

Exemplar C38C-1

Contractor shall have the authority to defend and/or settle any such Claim; provided, however, that Contractor will not consent to the entry of any judgment or enter into any compromise or settlement with respect to any indemnified Claim without the prior written consent of Client unless such judgment, compromise or settlement: (a) provides for the payment by Contractor of money as sole relief for the claimant; (b) results in the full and general release of Client from all liabilities arising or relating to, or in connection with, the indemnified Claim; and (c) involves no finding or admission of any violation of applicable law or the rights of any person or entity by Client. Client may participate in the defense and settlement of any indemnified claim, at Client’s own expense, with counsel of Client’s own choosing.

Exemplar C38C-2

CUSTOMER shall provide Vendor with prompt written notice of any Claim (provided, however, that any delay in notification will not relieve Vendor of its obligations under this Section except to the extent that the delay impairs its ability to defend) and permit Vendor sole control over the defense and settlement of such Claim, provided that Vendor shall not agree to any settlement without the prior written consent of CUSTOMER if such settlement: (a) would impose any obligations on any of the CUSTOMER Indemnitees; (b) requires an independent admission of liability on the part of a CUSTOMER Indemnitee; (c) exposes a CUSTOMER Indemnitee to any liability; or (d) imposes any restrictions upon CUSTOMER’s or any of its Affiliate’s use or Commercialization of the Licensed Software or Developments. If and to the extent requested in writing by the Vendor, CUSTOMER will also provide, reasonable and necessary cooperation provided that Vendor pays any out-of-pocket expenses incurred by CUSTOMER in the process.

Exemplar C38C-3

In connection with Contractor’s defense under this Section, Contractor will not agree to any settlement unless it provides a full and unconditional release of the Customer Indemnified Parties and does not result in any financial or other obligations of the Customer Indemnified Parties or require the admission of any fault, liability or responsibility on behalf of the Customer Indemnified Parties. In the event that the scope of the proposed settlement does not satisfy the conditions set forth in the preceding sentence, the written consent of Customer Indemnified Parties to such settlement shall be required by Contractor.

Exemplar C38C-4

The Indemnitor shall not have the right to settle any Claim if such settlement arises from or is part of any criminal action or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the Indemnitee or require the Indemnitee to pay any amount to any individual/party without the prior written consent of such Indemnitee.

Exemplar C38C-5

Subject to the conditions set forth in this Section, Licensor will defend You against any claim made against You that End User Content was leaked or lost from use of Your Secure Application, and such leak or loss was attributable solely to a defect or error introduced into Your Secure Application by the Software (“Content Loss Claim”) and will indemnify You for the resulting costs and damages finally awarded against You to such third party regarding such Content Loss Claim by a court of competent jurisdiction or agreed to in settlement (provided that Licensor will not reach a settlement with such third party without Your prior written consent, which shall not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the You from all liability pertaining to such claim).

Exemplar C38C-6

In relation to the indemnities described in this Section, the Indemnified Party will notify the Indemnifying Party in writing of any allegation, claim, demand, suit, cause of action or legal proceeding that may give rise to a claim against such Indemnifying Party for indemnification; provided, however, that any delay in such notice shall not relieve the Indemnifying Party of its obligations under this Section, except insofar as such Indemnifying Party can show that such delay actually and materially prejudiced it. The Indemnifying Party shall assume and thereafter have control of any suit involving such claim and any settlement negotiations involving solely a monetary payment.

Exemplar C38C-7

Buyer will have the right, at its option, upon notice to Supplier, to tender its defense to Supplier and to select and retain such counsel as Buyer deems necessary to represent them in connection with any liability indemnified under this Agreement. Whether Buyer tenders its defense to Supplier or chooses to defend itself, any fees and expenses of Buyer’s counsel (i.e., cost of defense) among the other Costs for which Supplier is indemnifying Buyer will be solely assumed by Supplier and paid by Supplier as they are incurred. Supplier will not have the right to settle any claim on the part of Buyer without the prior written consent of Buyer.

Exemplar C38C-8

Supplier shall not enter into any settlement that affects Customer’s rights or interests without Customer’s prior written consent, which will not be unreasonably withheld.

Exemplar C38C-9

Licensor agrees that in negotiating any settlement pursuant to this clause, it shall act reasonably and shall consult with the Licensee before agreeing any settlement.

Exemplar C38C-10

Lender will not be liable under this Agreement for any amount to settle any claims or actions if the settlement is entered into without Lender’s consent, which consent may not be withheld or delayed unless such settlement is unreasonable in light of such claims or actions against, and defenses available to, Borrower.

Exemplar C38C-11

CONTRACTOR is permitted to fully control the defense and any settlement of any such claim as long as such settlement does not include a financial obligation on or admission of liability by OEM.