Sample Share Purchase And Share Holder Agreement Page 27
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77(b)
any breach by the Strategic Partner or the Principal(s) of any of its covenants,
agreements or obligations contained herein; provided that in no event shall the Strategic
Partner and the Principals be liable, whether in contract, tort or otherwise for any special,
indirect, incidental or consequential damages arising out of or in connection with this
Agreement, or any breach, performance or non performance of any provision hereof.
11.3
Notice of Claim; Right to Participate in and Defend Third Party Claim; Non-Third
Party Claims.
(a)
If any indemnified party receives notice of any Claim in respect of which
indemnification may be sought under this Agreement (a “Third Party Claim”), and the
indemnified Party intends to seek indemnification under this Agreement, then the
indemnified Party (the “Beneficiary”) shall promptly provide the indemnifying Party with
written notice of the Third Party Claim and the relevant facts and circumstances to the
extent known, provided, however, that if:
(i) such Claim is under Clause 11.1(a) or 11.2(a), any notice of the Third Party Claim
must be delivered prior to the expiration of the R&W Claim Period with respect to the
pertinent representation and warranty described in Clause 11.5 of this Agreement;
(ii)
if such Claim is under Clause 11.1(b) or 11.2(b), any notice of the Third Party
Claim must be delivered within 30 (thirty) calendar days of the breach of the pertinent
covenant or obligation;
(iii)
the failure by the Beneficiary to notify an indemnifying Party of a Third Party
Claim shall not relieve the indemnifying Party of any indemnification responsibility
under this Article 11, unless:
(a)
such failure prejudices the ability of the indemnifying Party to defend such Third
Party Claim, or
(b)
such Claim is under Clause 11.1(a) or 11.2(a) and notice of the Third Party Claim
is delivered after the expiration of the R&W Claim Period with respect to the pertinent
representation and warranty as described in Clause 11.5, or
(c)
such Claim is under Clause 11.1(b) or 11.2(b) and notice of the Third Party Claim
is delivered after 30 calendar days following the breach of the pertinent covenant or
obligation;
(iv)
the indemnifying Party shall have the right, at its option and expense, to
participate in the defence of such Third Party Claim, but not to control the defence,
negotiation or settlement thereof (which control shall at all times rest with the
Beneficiary) unless (1) such Third Party Claim involves only money damages and not an
injunction or other equitable relief; or (2) if the indemnifying Party has a defence or
counterclaim in relation to such Third Party Claim which the Beneficiary is not entitled to
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