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9.6.6 Independent Duty to Defend. The duty to defend under this Agreement is <br />separate and independent of the duty to Indemnify. The duty to defend includes claims for which <br />an Indemnitee may be liable without fault or strictly liable. The duty to defend applies immediately <br />upon notice of a Claim, regardless of whether the issues of negligence, liability, fault, default or <br />other obligation on the part of the Indemnitor or the Indemnitee have been determined. The duty <br />to defend applies immediately, regardless of whether the Indemnitee has paid any amounts or <br />incurred any detriment arising out of or relating (directly or indirectly) to any claims. It is the <br />express intention of the Parties that an Indemnitee be entitled to obtain summary adjudication or <br />summary judgment regarding an Indemnitor's duty to defend the Indemnitee, at any stage of any <br />claim or suit, within the scope of the Indemnitor's indemnity obligations under this Agreement. <br />9.7 Indemnification Procedures. Wherever this Agreement requires any Indemnitor <br />to Indemnify any Indemnitee: <br />9.7.1 Prompt Notice. The Indemnitee shall promptly Notify the Indemnitor of <br />any claim. To the extent, and only to the extent, that the Indemnitee fails to give prompt Notice <br />of a Claim and such failure materially prejudices the Indemnitor in providing indemnity for such <br />claim, the hrdemnitor shall be relieved of its indemnity obligations for such claim. <br />9.7.2 Selection of Counsel. The Indemnitor shall select counsel reasonably <br />acceptable to the Indemnitee. Counsel to Indemnitor's insurance carrier that is providing coverage <br />for a claim shall be deemed reasonably satisfactory. Even though the Indemnitor shall defend the <br />action, hndemnitee may, at its option and its own expense, engage separate counsel to advise it <br />regarding the claim and its defense. The Indemnitee's separate counsel may attend all proceedings <br />and meetings. The Indemnitor's counsel shall actively consult with the Indemnitee's separate <br />counsel. The Indemnitor and its counsel shall, however, fully control the defense, except to the <br />extent that the Indemnitee waives its rights to indemnity and defense for such claim. <br />9.7.3 Cooperatio,n. The Indemnitee shall reasonably cooperate with the <br />Indemnitor's defense of the Indemnitee, provided the hndemnitor reimburses the Indemnitee's <br />actual out of pocket expenses (including Legal Costs) of such cooperation. <br />9.7.4 Settlement. The Indemnitor may, with the Indemnitee's consent, not to be <br />unreasonably withheld, settle a claim. The Indemnitee's consent shall not be required for any <br />settlement by which all of the following occur: (a) the Indemnitor procures (by payment, <br />settlement, or otherwise) a release of the Indemnitee from the subject claim(s) by which the <br />Indemnitee need not make any payment to the claimant; (b) neither the Indemnitee nor the <br />Indemnitor on behalf of the Indemnitee admits liability; (c) the continued effectiveness of this <br />Agreement is not jeopardized in any way; and (d) the Indemnitee's interest in the Project is not <br />jeopardized in anyway. <br />9.7.5 Insurance Proceeds. The Indemnitor's obligations shall be reduced by net <br />insurance proceeds the Indemnitee actually receives for the matter giving rise to indemnification <br />obligation. <br />m <br />55394.00049\33239203. 12 <br />