THIS INDEMNITY AGREEMENT (the "Agreement"), outlining the terms and conditions of indemnification, is effective as of _________ (the "Execution Date"),
_________ of _________ and
(collectively and individually the "Indemnitee")
_________ of _________ and
(collectively and individually the "Indemnifier")
BACKGROUND:
1. The Indemnitee requires protection against any liability, claim, suit, action, loss, or damage arising from their participation in the Service, and the Indemnifier agrees to provide such protection to minimize any potential hardship to the Indemnitee.
CONSIDERATION
In exchange for the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
Definitions
2. For the purposes of this Agreement, the following terms shall have the meanings set forth below:
c. "Service" shall mean:
_________.
d. "Expenses" shall mean all costs incurred in the defense of any claim or action brought against the Indemnitee, including reasonable attorneys' fees.
e. "Notice of Claim" shall mean a written notice provided by the Indemnitee to the Indemnifier describing a claim or action that has been or is threatened to be brought against the Indemnitee by a Third Party.
f. "Notice of Indemnity" shall mean a written notice provided by the Indemnitee to the Indemnifier describing an amount owed under this Agreement by the Indemnifier to the Indemnitee.
g. "Parties" shall mean the Indemnitee and the Indemnifier collectively.
h. "Party" shall mean either the Indemnitee or the Indemnifier individually.
i. "Third Party" shall mean any individual or entity other than the Indemnifier and the Indemnitee.
Indemnification
- The Indemnifier shall indemnify and hold the Indemnitee harmless from all liabilities, losses, damages, costs, and expenses (including, but not limited to, Expenses, Judgments, Fines, and Settlements) arising from or connected with the Indemnitee's involvement in the Service, including, without limitation, Expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any liability, suit, action, loss, or damage arising or resulting from the Indemnitee's participation in the Service, except as specifically provided in the "Exceptions to Indemnification" section. This indemnity does not extend to claims resulting solely from the Indemnitee's negligence or intentional acts, or those of its direct subordinates (excluding the Indemnifier and its affiliates).
11. The Indemnifier shall not be obligated to indemnify the Indemnitee for any judgments or fines resulting from a criminal conviction.
Exceptions to Indemnification
12. Notwithstanding the provisions of the Indemnification section, the Indemnifier shall have no obligation to indemnify the Indemnitee for any expenses, judgments, fines, settlements, or other amounts incurred as a result of the Indemnitee's participation in the Service under the following circumstances:
a. In the context of a civil claim, the Indemnitee's actions were found by a court of competent jurisdiction to have been in bad faith or to have constituted gross negligence or willful misconduct.
b. The Indemnitee's conduct involved willful misconduct, knowingly fraudulent activity, or deliberate dishonesty;
c. The Indemnitee has received full indemnification or payment for the loss from a valid and collectible insurance policy or another indemnity agreement, bylaw, or clause. If such sources provide only partial indemnification, the Indemnifier shall be responsible for the remaining shortfall; or
d.The action or proceeding was initiated by the Indemnitee against a third party, unless the Indemnifier has provided prior written consent for such action or proceeding.
13.If any Indemnitee is determined to be ineligible for indemnification under any provision of this Section, then no Indemnitee shall be entitled to indemnification for the related claim or action.
Notice of Claim
14. The Indemnitee shall promptly, and in no event later than five (5) business days after becoming aware of any claim or action that may give rise to a right to indemnification under this Agreement, provide the Indemnifier with detailed written notice of such claim or action. The Indemnitee shall also provide the Indemnifier with written notice within five (5) business days of the commencement of any legal proceedings related to the claim or action and shall furnish the Indemnifier with all information and documentation reasonably available to the Indemnitee concerning the claim or action.
Authorization of Indemnification
15. Upon receipt of a Notice of Claim, the Indemnifier shall promptly evaluate the claim and determine whether indemnification is required under the terms of this Agreement, specifically considering the "Exceptions to Indemnification" section. The Indemnifier shall notify the Indemnitee of its determination in writing within [Number] business days.
If the Indemnitee disagrees with the Indemnifier's determination, the matter shall be referred to independent legal counsel mutually agreed upon by the Indemnifier and the Indemnitee. The independent legal counsel shall review the relevant facts and the terms of this Agreement and provide a written opinion on whether indemnification is appropriate. The Indemnifier shall bear all costs associated with this independent review.
16. The Indemnifier shall have the burden of proving that indemnification is not appropriate.
17 The conclusion of any claim or action through judgment, order, settlement, conviction, or admission of guilt shall not automatically create a presumption that the Indemnitee failed to act in good faith and in a manner that was manner..
Assumption of Defense
18. Upon receiving notice of any impending action or claim, the Indemnifier has the right, at its sole expense, to participate in and assume the defense of the action or claim, either individually or jointly with other indemnifying parties. The Indemnifier shall select legal counsel reasonably acceptable to the Indemnitee.
19. Once the Indemnifier notifies the Indemnitee of its decision to assume the defense, the Indemnifier will not be responsible for any further expenses incurred by the Indemnitee in defending the claim from that point forward. If the Indemnifier assumes the defense, the Indemnitee retains the right to employ its counsel, but any subsequent fees and expenses of such counsel shall be the Indemnitee's sole responsibility.
Failure to Defend
20. If the Indemnifier chooses not to assume the defense of a claim or action, the Indemnitee shall have the right to defend against such claim or action in any manner it deems appropriate. In the event the Indemnifier does not assume the defense, the Indemnifier shall promptly reimburse the Indemnitee for all reasonable and actual expenses, judgments, fines, settlements, and other amounts incurred by the Indemnitee in connection with the defense, subject to the limitations outlined in the "Exceptions to Indemnification" section.
Settlement and Consent of Indemnifier
21.The Indemnitee shall not enter into any settlement of a claim or action without the prior written consent of the Indemnifier, which consent shall not be unreasonably withheld. The Indemnifier shall not be liable for any settlement amounts agreed to by the Indemnitee without the Indemnifier's prior written consent.
Settlement and Consent of Indemnitee
22. The Indemnifier shall not settle any claim or action without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld.
Cooperation
23. The Indemnifier and the Indemnitee agree to cooperate fully and in good faith with each other in the defense of any claim or action related to the Indemnitee's participation in the Service and in the determination of the Indemnitee's right to indemnification under this Agreement.
24. The Indemnitee shall fully cooperate in good faith and provide the Indemnifier with all information, documents, and assistance within its control necessary for the effective defense of any claim or action for which indemnification is sought, and for the Indemnifier's determination of its indemnification obligations.
Expenses
17. No costs, charges, or expenses for which indemnification will be sought under this Agreement shall be incurred by the Indemnitee without the Indemnifier's prior written consent, which shall not be unreasonably withheld.
25. Notwithstanding the foregoing, the Indemnifier shall be solely responsible for all reasonable expenses incurred by the Indemnitee in enforcing its rights under this Agreement and all costs of defending any Third Party claims or actions against the Indemnitee that are subject to indemnification under this Agreement, subject to the limitations in the "Exceptions to Indemnification" section.
Advances of Expenses
26. Upon the Indemnitee's written request, the Indemnifier shall advance to the Indemnitee all reasonable expenses, including attorneys' fees, incurred by the Indemnitee in the defense of any action for which indemnification may be required under this Agreement. To the extent practicable and to minimize hardship, such advances may be made prior to the final disposition of the matter.
27. The Indemnitee undertakes to repay to the Indemnifier any amounts advanced pursuant to this Section if it is ultimately determined that the Indemnitee is not entitled to indemnification under the terms of this Agreement.
Payment
28. All payments due from the Indemnifier to the Indemnitee under this Agreement shall be made in immediately available funds within sixty (60) calendar days following the Indemnifier's receipt of a valid and complete Notice of Indemnity from the Indemnitee. Such payments shall be made without any deduction for counterclaim, set-off, or other offsets.
29. Any Notice of Indemnity shall be in writing and shall include a detailed itemization of the amounts for which payment is sought. Any payment made by the Indemnifier shall be accompanied by a statement identifying the items being paid.
Enforcement
30. If the Indemnifier fails to honor any right or remedy claimed by the Indemnitee under this Agreement, or fails to make payment within sixty (60) days after the Indemnitee submits a written Notice of Indemnity, the Indemnitee shall have the right to institute legal proceedings against the Indemnifier to recover the unpaid amounts.
In the event the Indemnitee prevails in any such legal action, in whole or in part, the Indemnitee shall be entitled to recover all reasonable costs and expenses incurred in connection with such action, including reasonable attorneys' fees.
31. A determination under the "Authorization of Indemnification" section that the Indemnitee's conduct does not warrant indemnification for a specific claim shall not create a presumption that the Indemnitee is not entitled to indemnification for other claims under this Agreement.
Insurance
32. The Indemnitee shall have the sole discretion to determine whether it is reasonable and prudent to obtain liability insurance to cover its obligations under this Indemnity Agreement. In making this determination, the Indemnitee shall consider the reputation and financial stability of potential insurers, as well as the cost-effectiveness of the insurance coverage relative to the protection it provides.
Duration
33. This Agreement shall continue in full force and effect for so long as the Indemnitee may be subject to any actual or threatened claim, action, suit, or proceeding (whether civil, arbitral, administrative, or investigative) arising out of or relating to the Indemnitee's participation in the Service; or
a. This Agreement may also be terminated at any time by a written agreement signed by both the Indemnifier and the Indemnitee.
Unlimited Indemnification
34. The Indemnifier's obligation to indemnify the Indemnitee under this Agreement shall not be subject to any monetary limitation or cap.
Full Release
35. The Indemnifier and the Indemnitee shall be fully released from their respective obligations under this Agreement only upon the complete payment and satisfaction of all amounts owed and the full performance of all terms, covenants, and conditions contained herein.
Further Action
36. No action or proceeding brought under this Agreement, and no recovery obtained therefrom, shall preclude the bringing of any subsequent action or proceeding for any future breach or non-performance of the terms, covenants, and conditions of this Agreement.
Subrogation
37. If the Indemnifier makes any indemnity payment under this Agreement, the Indemnifier shall be subrogated, to the extent of that payment, to all rights of recovery held by the Indemnitee. The Indemnitee agrees to take all necessary actions and provide any required information to secure and support the Indemnifier’s ability to enforce those rights and recover the amount paid.
Amendments
38. Any amendment, termination, or cancellation of this Agreement must be in writing and signed by both Parties.
Assignment of Indemnifier Rights and Obligations
39. The Indemnifier shall not have the right to assign any of its rights or delegate any of its obligations under this Agreement, in whole or in part, without the prior written consent of the Indemnitee, which consent may be withheld in the Indemnitee's sole discretion.
Assignment of Indemnitee Rights and Obligations
40. The Indemnitee shall not have the right to assign any of its rights or delegate any of its obligations under this Agreement, in whole or in part, without the prior written consent of the Indemnifier, which consent may be withheld in the Indemnifier's sole discretion.
Joint and Several Liability
41.Where applicable, the liability of each Indemnifier (if more than one) under this Agreement shall be joint and several, meaning that each Indemnifier may be held liable for the full amount of the obligations, regardless of the liability of any other Indemnifier.
Notices
42. All notices and other communications under this Agreement must be in writing and shall be deemed to have been received by the addressee (a) if delivered by hand, on the date of delivery; (b) if sent by reputable overnight courier, on the first business day after dispatch; or (c) if sent by prepaid registered mail, seven (7) calendar days after the date of mailing, in each case to the address of the relevant Party as specified in this Agreement or as subsequently notified in writing by such Party.
Governing Law
43. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed under the laws of the state of _________, without regard to its conflict of laws principles.
Jurisdiction
44. The courts located within the State of _________ shall have exclusive jurisdiction to hear and determine any suit, action, or proceeding arising out of or in connection with this Agreement. Each Party hereby irrevocably submits to the jurisdiction of such courts.
General Provisions
45. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, agreements, and understandings, whether oral or written. No representations or statements made prior to the execution of this Agreement, whether written or oral, shall have any force or effect unless expressly incorporated herein.
46. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of such right, power, or remedy, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the waiver is sought to be enforced.
47. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns.
48. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability shall not affect the validity or enforceability of the other provisions of this Agreement, and the Parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, legal, and commercial objectives of the invalid, illegal, or unenforceable provision.
49. The rights and remedies of the Parties under this Agreement shall be cumulative and not exclusive of any rights or remedies provided by law or in equity. The exercise of any one right or remedy by a Party shall not preclude the exercise of any other right or remedy available to that Party.
50. Time is of the essence in this Agreement.
51. This Agreement may be executed in any number of counterparts, each of which, when so executed, shall be deemed an original, and all of which, when taken together, shall constitute the same agreement. The Parties may execute this Agreement by signing any such counterpart
52. The headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation of any provision of this Agreement.
IN WITNESS WHEREOF the Indemnitee and the Indemnifier have duly affixed their signatures under hand and seal on this _________.
______________________________ _________ (Indemnitee) |
______________________________ _________ (Indemnifier) |
+1 855 997 0206 
