This excerpt taken from the MRVL 8-K filed Nov 14, 2006.
(a) Each indemnification claim shall be made only in accordance with this Article VII.
(b) If an Indemnitee wishes to make a claim for Losses under Article VII of this Agreement, Indemnitee shall deliver a written notice (a Notice of Claim) to the applicable Indemnitor promptly after becoming aware of the facts giving rise to such claim. The Notice of Claim shall (i) specify in reasonable detail the nature of the claim being made, and (ii) state the aggregate dollar amount of such claim; provided, however, that the failure to provide such notice shall not relieve the Indemnitor of liability under this Article VII unless (and only to the extent that) the Indemnitor is actually prejudiced thereby, and provided, further, notwithstanding the foregoing, that any Notice of Claim must be delivered prior to expiration of the survival period specified in Section 7.01.
(c) Following receipt by Indemnitor of a Notice of Claim, the Parties shall promptly meet to agree on the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and amounts agreed upon shall be promptly paid. Any unresolved dispute between the Parties shall be resolved in accordance with Section 9.11 and Section 9.12 and the other applicable provisions of this Agreement.
7.04 Third-Party Claims. If Buyer becomes aware of a claim of a third party (including for all purposes of this Section 7.04, any Governmental Authority) that Buyer believes, in good faith, may result in a claim by it or any other Buyer Indemnitee against Seller, Buyer shall notify Seller of such claim as promptly as practicable, provided that any failure to provide such notice shall not relieve Seller from its obligations under this Article VII except to the extent that Seller is actually prejudiced thereby. Seller shall have the right to assume and conduct the defense of such claim. Seller shall conduct such defense in a commercially reasonable manner, and shall be
authorized to settle any such claim without the consent of Buyer, provided, however, that without the consent of Buyer (which consent shall not be unreasonably withheld): (a) Seller shall not be authorized to encumber any assets of Buyer (including the Transferred Assets or Transferred Shares or assets related exclusively to the Business of Transferred Sub) or agree to any restriction that would apply to Buyer or the conduct of Buyers business; (b) Seller shall have paid or caused to be paid any amounts arising out of such settlement; and (c) a condition to any such settlement shall be a complete release of Buyer Indemnitees with respect to such third party claim. Buyer or other applicable Buyer Indemnitee shall be entitled to participate in (but, subject to the succeeding sentence, not control) the defense of any third party claim, with its own counsel and at its own expense; provided, that Seller shall be liable for the reasonable fees and expenses of one (1) firm of outside counsel (and not any fees and expenses allocated to any internal counsel) employed by the Buyer Indemnitees for any period during which Seller has not assumed the defense thereof following the date which is ten (10) days after delivery of such notice (other than during any period in which Buyer shall have failed to give notice of the third party claim) or to the extent that counsel to the Buyer Indemnitee concludes that representation of such Indemnitee by the counsel retained by Seller would be inappropriate due to actual or potential conflicts of interest between the Seller and any other party represented by such counsel in such Proceeding. Buyer shall cooperate fully with Seller in the defense of any third party claim. If Seller does not assume the defense of any third party claim in accordance with the provisions hereof, Buyer may defend such third party claim in a commercially reasonable manner and may settle such third party claim after giving written notice of the terms thereof to Seller.
7.05 Exclusive Remedy. Notwithstanding any other provision of this Agreement to the contrary, except with respect to fraud by Buyer or Seller or as provided in Section 5.09(b) through Section 5.09(k), as the case may be, the provisions of this Article VII shall be the sole and exclusive remedy for any monetary damages of the Indemnitees from and after the Closing Date for any Losses arising under this Agreement or any Conveyance Document or relating to the transactions contemplated by this Agreement, including claims of breach of any representation, warranty or covenant in this Agreement or any Conveyance Document; provided, however, that the foregoing clause of this sentence shall not be deemed a waiver by any Party of any right to specific performance or injunctive relief but shall be deemed a waiver of any rights of rescission. Notwithstanding any other provision of this Agreement, except as provided in Section 5.09, the maximum aggregate liability of Seller to Buyer Indemnitees pursuant to this Article VII or otherwise under this Agreement, Applicable Law or otherwise shall be limited to Thirty Million Dollars ($30,000,000) (the Indemnification Cap), it being understood and agreed, for the avoidance of doubt, that Liabilities that Seller or its Subsidiaries are required to pay or satisfy (or for which Seller and its Subsidiaries are otherwise responsible) under Section 5.09 are not subject to any limitation, whether under the Indemnification Cap or otherwise, and shall not be counted against the Indemnification Cap. Nothing in this Agreement limits or otherwise affects in any way the rights and remedies of either Party with respect to causes of action arising under any Ancillary Agreement, or any rights and remedies of Seller or Buyer with respect to any infringement or misappropriation of any Intellectual Property of Seller or Buyer, as the case may be (including any right of Seller or Buyer to seek equitable or injunctive relief in connection therewith), all of which rights and remedies are expressly reserved.
7.06 Subrogation. If the Indemnitor makes any payment under this Article VII in respect of any Losses, the Indemnitor shall be subrogated, to the extent of such payment, to the rights of the Indemnitee against any insurer or third party with respect to such Losses; provided, however, that the Indemnitor shall not have any rights of subrogation with respect to the other Party hereto or any of its Affiliates or any of its or its Affiliates officers, directors, agents or employees.
7.07 Damages. Notwithstanding anything to the contrary elsewhere in this Agreement or any other Acquisition Document, no Party (or its Affiliates) shall, in any event, be liable to the other Party (or its Affiliates) for any consequential damages, including, but not limited to, loss of revenue or income, cost of capital, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement. Each Party agrees that it will not seek punitive damages as to any matter under, relating to or arising out of the transactions contemplated by this Agreement or the other Acquisition Documents.