Indemnity Agreement - Template, Sample Form to Complete Pro · US-law

INDEMNITY AGREEMENT

State of ________

RECITALS

A. This Indemnity Agreement (the “Agreement”) is made and entered into effective as of ________ (the “Effective Date”), by and between the following protected party (the “Indemnitee”):

________
a ________ organized under the laws of the State of ________,
of
________
________

and the following reimbursing party (the “Indemnifier”):

________
a ________ organized under the laws of the State of ________,
of
________
________

The Indemnitee and the Indemnifier are referred to herein individually as a “Party” and collectively as the “Parties.”

B. WHEREAS, the Indemnitee desires protection against any personal liability, claim, suit, action, loss, or damage that may result from the Indemnitee’s receiving the service described herein; and

C. WHEREAS, the Indemnifier desires to provide protection against and minimize any harm the Indemnitee may suffer as a result of any personal liability, claim, suit, action, loss, or damage that may result from the Indemnitee’s receiving the service described herein; and

D. WHEREAS, the Indemnifier is protecting the Indemnitee in exchange for the Indemnitee receiving the following service (the “Service”):

________

NOW, THEREFORE, in consideration of the Indemnitee receiving the Service, the Parties entering into this Agreement, the mutual covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

§ I. INDEMNIFICATION.

1. The Indemnifier agrees to fully indemnify, defend, and hold harmless the Indemnitee from and against any and all civil claims, actions, suits, and proceedings arising out of the Indemnitee’s receiving the Service, including, without limitation, all expenses, fines, settlements, judgments, claims for personal injury, wrongful death, and other amounts actually and reasonably incurred in connection with any liability, suit, action, loss, or damage arising therefrom, subject to the limitations on indemnification set forth herein.

2. To the extent permitted by applicable federal, state, and local law, the foregoing indemnification shall not extend to any claims caused by the gross negligence, willful misconduct, or fault of the Indemnitee, its agents or employees, or any third party under their supervision or control, other than the Indemnifier and its agents, employees, or subcontractors.

3. In the event of any criminal proceeding arising as a result of the Indemnitee’s receiving the Service, the Indemnifier shall indemnify the Indemnitee against all amounts, including, without limitation, expenses, fines, judgments, settlements, and other amounts actually and reasonably incurred by the Indemnitee, subject to the limitations on indemnification set forth herein.

4. Under the terms of this Agreement, the maximum amount of indemnification the Indemnifier shall be obligated to pay is limited to $________ (________) with respect to any single claim or action, and $________ (________) in the aggregate under this Agreement.

5. The Indemnifier agrees to cooperate in good faith and use commercially reasonable efforts to ensure that the Indemnitee is reimbursed and indemnified for any and all relevant expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the defense of any claim or action resulting from the Indemnitee’s receiving the Service.

6. The Indemnitee agrees to cooperate in good faith and use commercially reasonable efforts to provide any and all necessary information and documents within its power as may be required for the defense of any claim or action. The Indemnitee shall also provide all information and documents necessary and within its power to assist in any determination of indemnification as described herein.

§ II. EXCEPTIONS TO INDEMNIFICATION.

7. The Indemnitee shall not be entitled to indemnification from the Indemnifier for any judgments, settlements, expenses, fines, lawsuits, or other amounts incurred as a result of the Indemnitee’s actions where:

a. in the case of a civil claim, the Indemnitee is determined to have acted negligently and without due and reasonable care;

b. in the case of a criminal action, the Indemnitee had reasonable cause to believe that its conduct was unlawful;

c. the actions or conduct of the Indemnitee constituted willful misconduct or were knowingly fraudulent or deliberately dishonest;

d. the Indemnitee has received or will receive payment under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw, or agreement, except where payment under such policy, clause, bylaw, or agreement is not sufficient to fully indemnify the Indemnitee, in which case the Indemnifier shall be responsible only for the deficiency; or

e. an action or proceeding was initiated in whole or in part by the Indemnitee, whether alone or together with one or more other claimants, unless the action or proceeding has the prior written consent of the Indemnifier.

§ III. NOTICE OF CLAIM.

Lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod tempor incididunt ut labore et dolore magna aliqua ut enim ad minim veniam quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat duis aute irure dolor in reprehenderit voluptate velit esse cillum dolore eu fugiat nulla pariatur lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod tempor incididunt ut labore et dolore magna aliqua ut enim ad minim veniam quis nostrud exercitation ullamco laboris.

§ IV. AUTHORIZATION OF INDEMNIFICATION.

9. In any case requiring indemnification of the Indemnitee, the Indemnifier shall make the determination of whether indemnification is due and appropriate, having given all due consideration to the terms described herein.

10. If the Indemnitee disagrees with the determination of the Indemnifier, then the matter shall be referred for review and determination to independent legal counsel or to mediation reasonably satisfactory to both Parties. The Indemnifier shall bear all costs associated with the process of making such independent determination.

11. The Indemnifier bears the burden of proving that indemnification is not appropriate if that is the conclusion it reaches following its initial review.

12. The termination of any claim or action by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the Indemnitee did not act in good faith and in a reasonable manner or, in the case of a criminal action, that the Indemnitee had reasonable cause to believe that its conduct was unlawful.

§ V. PARTICIPATION IN DEFENSE.

13. Upon notification of any impending action or claim, the Indemnifier may, at its discretion and at its own expense, participate in the defense of any action or claim and may, alone or together with any other indemnifying party, assume the defense against the action or claim using counsel reasonably satisfactory to the Indemnitee.

Lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod tempor incididunt ut labore et dolore magna aliqua ut enim ad minim veniam quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat duis aute irure dolor in reprehenderit voluptate velit esse cillum dolore eu fugiat nulla pariatur lorem ipsum dolor sit amet consectetur adipiscing elit sed do eiusmod tempor incididunt ut labore et dolore magna aliqua ut enim ad minim veniam quis nostrud exercitation ullamco laboris.

15. If the Indemnifier elects not to participate in the defense against the claim or action, the Indemnitee may defend against the claim or action in any reasonable manner it deems sufficient and appropriate. The Indemnifier shall promptly reimburse the Indemnitee for all expenses, judgments, fines, settlements, and any other amounts actually and reasonably incurred in connection with the defense of the claim or action, subject to the limitations on indemnification described herein.

§ VI. SETTLEMENT OF CLAIMS.

16. The Indemnifier shall not, without the prior written consent of the Indemnitee, settle, compromise, or consent to the entry of any judgment in any pending or threatened claim or action in respect of which indemnification may be sought hereunder, unless such settlement, compromise, or consent includes an unconditional release of the Indemnitee from all liability arising out of such claim or action and does not impose any non-monetary obligation or admission of fault upon the Indemnitee.

17. The Indemnitee shall not settle or compromise any claim or action without the prior written consent of the Indemnifier, which consent shall not be unreasonably withheld, conditioned, or delayed. Any settlement or compromise made by the Indemnitee without such consent shall relieve the Indemnifier of its obligation to indemnify the Indemnitee with respect to such claim or action.

§ VII. ADVANCEMENT OF EXPENSES.

18. The Indemnifier shall advance to the Indemnitee, prior to the final disposition of any claim or action, all expenses actually and reasonably incurred by the Indemnitee in connection with the defense of such claim or action, subject to the limitations on indemnification described herein.

19. As a condition of any advancement of expenses, the Indemnitee shall provide the Indemnifier with a written request setting forth in reasonable detail the expenses for which advancement is sought, together with such supporting documentation as the Indemnifier may reasonably require.

20. The Indemnitee shall undertake in writing to repay any and all amounts so advanced if it shall ultimately be determined, in accordance with the terms described herein, that the Indemnitee is not entitled to be indemnified for such expenses under this Agreement.

21. The advancement of expenses under this Article shall be made without regard to the Indemnitee’s ability to repay such amounts and without regard to any ultimate determination of the Indemnitee’s entitlement to indemnification.

§ VIII. PAYMENTS.

22. The Indemnifier shall make all necessary and due payments to the Indemnitee within thirty (30) days of receipt of a Notice of Indemnity from the Indemnitee, without deduction for counterclaim, defense, recoupment, or set-off.

23. Any and all Notices of Indemnity made by the Indemnitee shall be made in writing and shall contain a full and itemized statement of the items to be covered by the payment from the Indemnifier.

§ IX. DEFAULT AND REMEDIES.

24. The occurrence of any of the following shall constitute a material default under this Agreement:

a. the failure to make a required payment when due;

b. the insolvency or bankruptcy of either Party; or

c. the subjection of any of either Party’s property to any levy, seizure, general assignment for the benefit of creditors, or application or sale for or by any creditor or governmental agency.

25. If any rights or remedies claimed by the Indemnitee under this Agreement are not paid by the Indemnifier, or on its behalf, within thirty (30) days after the Indemnitee provides the Indemnifier with a proper written Notice of Indemnity, this shall be deemed a material breach of this Agreement. The Indemnitee shall be entitled to bring suit against the Indemnifier to recover any unpaid amounts and, if successful in whole or in part, shall be entitled to recover all costs and reasonable attorneys’ fees related to resolving the claim.

26. Where a determination of indemnification is made as described herein and concludes that the Indemnitee is not entitled to indemnification, such determination shall not be considered a breach and shall not create a presumption that the Indemnitee is not entitled to any other indemnification under this Agreement.

§ X. INDEMNIFICATION INSURANCE.

27. The Indemnifier shall obtain and maintain indemnification insurance coverage with an insurer reasonably acceptable to the Indemnitee, on terms reasonable and sufficient to fulfill the Indemnifier’s obligation to provide proper indemnification, in a minimum coverage amount of $________.

28. If the Indemnifier fails to acquire and maintain such indemnification insurance coverage within a reasonable time from the Effective Date, the Indemnitee may obtain such insurance and charge all reasonable costs thereof to the Indemnifier.

§ XI. DURATION AND TERMINATION.

29. This Agreement shall commence on the Effective Date and shall terminate automatically on ________; provided, however, that the obligations of the Indemnifier with respect to any claim or action arising from the Indemnitee’s receiving the Service during the term of this Agreement shall survive such termination.

§ XII. JOINT AND SEVERAL LIABILITY.

30. If two or more parties act as Indemnifier under this Agreement, or if the Indemnifier is a partnership with two or more partners, then liability under this Agreement shall be joint and several as to each co-Indemnifier.

§ XIII. CONFIDENTIALITY.

31. Both the Indemnifier and the Indemnitee, and their respective employees, agents, and contractors, shall at all times maintain as confidential all information related to this Agreement and shall not at any time or in any manner, directly or indirectly, use for the benefit of the other Party, or divulge, disclose, or communicate in any manner any information that is proprietary to the other Party, except where required to disclose by any regulatory or other authority or as otherwise required by law.

§ XIV. ENTIRE AGREEMENT.

32. This Agreement contains the entire agreement of the Parties, and there are no other promises or conditions in any other agreement, whether oral or written, concerning the subject matter of this Agreement.

33. This Agreement supersedes any prior written or oral agreements between the Parties concerning the subject matter hereof.

§ XV. SEVERABILITY.

34. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.

35. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

§ XVI. AMENDMENT.

36. This Agreement may be modified or amended only in writing, provided that such writing is signed by the Party to be charged under the amendment.

§ XVII. GOVERNING LAW AND VENUE.

37. This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict-of-laws principles. The Parties irrevocably consent and submit to the exclusive jurisdiction of the state and federal courts located in ________ County, State of ________, for the resolution of any dispute arising out of or relating to this Agreement.

§ XVIII. NOTICE.

38. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person, by nationally recognized overnight courier, or by certified mail, return receipt requested, postage prepaid, to the address set forth in the opening paragraph of this Agreement or to such other address as one Party may have furnished to the other in writing.

§ XIX. WAIVER OF CONTRACTUAL RIGHTS.

39. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

§ XX. ASSIGNMENT.

40. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, except that this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns, heirs, executors, administrators, and legal representatives.

§ XXI. COUNTERPARTS.

41. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means shall be deemed valid and binding to the same extent as original signatures.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

EXECUTION:

_________________________________
________, Title: ________, Representative of ________, Indemnitee

_________________
Date

_________________________________
________, Title: ________, Representative of ________, Indemnifier

_________________
Date