Standard — Unilateral + Mutual for Willful or Gross Negligence
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Indemnification

Indemnification by [PARTY B]. The [PARTY B] shall indemnify the [PARTY A] against all losses and expenses arising out of any proceeding:

brought by either a third party or the [PARTY A]; and

that arises out of any breach by the [PARTY B] of its obligations, representations, warranties, or covenants under this agreement.

Mutual Indemnification. Each party (as an "Indemnifying Party") shall indemnify the other (as an "Indemnified Party") against all losses arising out of any proceeding:

brought by either a third party or an Indemnified Party; and

that arises out of the Indemnifying Party's willful misconduct or gross negligence.


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Neutral Exchange Agreements Indemnification
Limited mutual indemnification against inter-party claims, with notice.
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Indemnification

Direct Claim Indemnification. Each party (as "Indemnitor") shall indemnify the other party (as "Indemnitee") against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Notice. The Indemnitee shall promptly notify the Indemnitor of the Indemnifiable Proceeding, and deliver to the Indemnitor all legal pleadings and documents necessary to defend the Indemnifiable Proceeding, before bringing a claim for indemnification. If the Indemnitee fails to notify the Indemnitor of the Indemnifiable Proceeding, the Indemnitor will be relieved of its indemnification obligations to the extent the Indemnitor was prejudiced by the Indemnitee's failure.

Exclusive Remedy. The Indemnitee's right to indemnification is the exclusive remedies available in connection to Indemnifiable Proceedings.

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the Indemnitee arising out of this agreement and relating to:

any breach of any representation or warranty contained in this agreement;

any breach or violation of any covenant or other obligation under this agreement or applicable law;

any claim alleging grossly negligent act or omission or willful conduct of the other party.

(b) “Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

Limits and Exclusions

Minimum Indemnifiable Losses. The Indemnitor need not indemnify the Indemnitee against Indemnifiable Losses that are less than [MINIMUM INDEMNIFIABLE LOSS AMOUNT].

Maximum Indemnifiable Losses. The Indemnitor need not indemnify the Indemnitee against Indemnifiable Losses that are more than [MAXIMUM INDEMNIFIABLE LOSS AMOUNT].

Exclusions. The Indemnitor need not indemnify the Indemnitee against Indemnifiable Losses to the extent the Indemnitee acted unlawfully, negligently, or intentionally to cause those Indemnifiable Losses.


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Neutral Exchange Agreements Indemnification
Limited indemnity against third-party claims, with notice.
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Indemnification

[PARTY A] Indemnification. The [PARTY A] shall indemnify The [PARTY B] against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Notice. The [PARTY B] shall promptly notify the [PARTY A] of the Indemnifiable Proceeding and deliver to the [PARTY A] all legal pleadings and documents necessary to defend the Indemnifiable Proceeding, before bringing a claim for indemnification. If the [PARTY B] fails to notify the [PARTY A] of the Indemnifiable Proceeding the [PARTY A] will be relieved of its indemnification obligations to the extent the [PARTY A] was prejudiced by the [PARTY B]'s failure.

Defense. In addition to indemnifying the [PARTY B] against all Indemnifiable Losses, the [PARTY A] may defend the [PARTY B] against the Indemnifiable Proceeding. To assume the defense, the [PARTY A] must promptly notify the [PARTY B] that it is doing so. 

Authority to Contest, Pay, or Settle. The [PARTY A] may contest, pay, or settle the Indemnifiable Proceeding without obtaining the [PARTY B]'s consent, only if the [PARTY A]'s decision (1) does not require the [PARTY B] to make any admission that it acted unlawfully, (2) does not effect any other legal proceeding against the [PARTY B], (3) provides that the claimant's monetary damages are paid in full by the [PARTY A], and (4) requires claimant release the [PARTY B] from all liability under the Indemnifiable Proceeding. 

Exclusive Remedy. The [PARTY B]'s right to indemnification is the exclusive remedy available in connection with the Indemnifiable Proceedings.

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the [PARTY B] arising out of this agreement and relating to: 

any third party claim or proceeding brought against one party, including those based on product liability, infringement, use of goods or services, or personal injury or death;

any claim or proceeding brought by any governmental agency;

any claim alleging grossly negligent act or omission or willful conduct of the other party;

any claim arising from [specified covered claim(s)].

“Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

Limits and Exclusions

Minimum Indemnifiable Losses. The [PARTY A] need not indemnify the [PARTY B] against Indemnifiable Losses that are less than [MINIMUM INDEMNIFIABLE LOSS AMOUNT].

Maximum Indemnifiable Losses. The [PARTY A] need not indemnify the [PARTY B] against Indemnifiable Losses that are more than [MAXIMUM INDEMNIFIABLE LOSS AMOUNT].

Exclusions. The [PARTY A] need not indemnify the [PARTY B] against Indemnifiable Losses to the extent the [PARTY B] acted unlawfully, negligently, or intentionally to cause those Indemnifiable Losses.


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Heavy Pro-Provider Exchange Agreements Indemnification
Unlimited unilateral indemnity for third-party claims, with notice requirement.
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Indemnification

[PARTY A] Indemnification. The [PARTY A] shall indemnify the [PARTY B] against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Notice. The [PARTY B] shall promptly notify the [PARTY A] of the Indemnifiable Proceeding and deliver to the [PARTY A] all legal pleadings and documents necessary to defend the Indemnifiable Proceeding, before bringing a claim for indemnification. If the [PARTY B] fails to notify the [PARTY A] of the Indemnifiable Proceeding the [PARTY A] will be relieved of its indemnification obligations to the extent the [PARTY A] was prejudiced by the [PARTY B]'s failure.

Defense. In addition to indemnifying the [PARTY B] against all Indemnifiable Losses, the [PARTY A] may defend the [PARTY B] against the Indemnifiable Proceeding. To assume the defense, the [PARTY A] must promptly notify the [PARTY B] that it is doing so. 

Authority to Contest, Pay, or Settle. The [PARTY A] may contest, pay, or settle the Indemnifiable Proceeding without obtaining the [PARTY B]'s consent, only if the [PARTY A]'s decision (1) does not require the [PARTY B] to make any admission that it acted unlawfully, (2) does not effect any other legal proceeding against the [PARTY B], (3) provides that the claimant's monetary damages are paid in full by the [PARTY A], and (4) requires claimant release the [PARTY B] from all liability under the Indemnifiable Proceeding. 

Exclusive Remedy. The [PARTY B]'s right to indemnification is the exclusive remedy available in connection with the Indemnifiable Proceedings.

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the [PARTY B] arising out of this agreement and relating to:

any third party claim or proceeding brought against one party, including those based on product liability, infringement, use of goods or services, or personal injury or death;

any claim or proceeding brought by any governmental agency;

any claim alleging grossly negligent act or omission or willful conduct of the other party;

any claim arising from [specified covered claim(s)].

“Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.


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Slight Pro-Provider Exchange Agreements Indemnification
Unlimited unilateral indemnity for third-party claims.
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Indemnification

[PARTY A] Indemnification. The [PARTY A] shall indemnify the [PARTY B] against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Defense. In addition to indemnifying the [PARTY B] against all Indemnifiable Losses the [PARTY A] shall defend the [PARTY B] against any Indemnifiable Proceeding. The [PARTY A] shall reimburse the [PARTY B] for any resaonable Litigation Expenses incurred by the [PARTY B] in connection with the Indemnifiable Proceedings before the [PARTY A] assumes the defense of the Indemnifiable Proceeding, except for any expenses incurred by the [PARTY B]'s failure to promptly notify the [PARTY A] of the Indemnifiable Proceeding.

Authority to Contest, Pay, or Settle. The [PARTY A] shall obtain the [PARTY B]'s consent before making any decision to contest, pay, or settle an Indemnifiable Proceeding.

Non-Exclusive Remedy. The [PARTY B]'s right to indemnification is not exclusive, but in addition to any other remedies available to the [PARTY B].

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the [PARTY B] arising out of this agreement and relating to:

any third party claim or proceeding brought against one party, including those based on product liability, infringement, use of goods or services, or personal injury or death;

any claim or proceeding brought by any governmental agency;

any claim alleging grossly negligent act or omission or willful conduct of the other party;

any claim arising from [specified covered claim(s)].

“Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.


Tags
Heavy Pro-Providee Exchange Agreements Indemnification
Unlimited mutual indemnity for third-party claims
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 Mutual Indemnification. Each party (as "Indemnitor") shall indemnify the other party (as "Indemnitee") against all losses arising out of any third-party proceeding and relating to this agreement.


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Neutral Exchange Agreements Indemnification
Third party claims; company exclusions
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 Indemnification

 Indemnification by [PARTY A]

 [PARTY A] Indemnity. If a third party makes a claim against [PARTY B] that the Service infringes any patent, copyright or trademark, or misappropriates any trade secret, or that [PARTY A]'s negligence or willful misconduct has caused bodily injury or death, [PARTY A] shall defend [PARTY B] and its directors, officers and employees against the claim at [PARTY A]'s expense and [PARTY A] shall pay all losses, damages and expenses (including reasonable attorneys' fees) finally awarded against such parties or agreed to in a written settlement agreement signed by [PARTY A], to the extent arising from the claim.

 [PARTY A] Indemnity Exclusions[PARTY A] will not be liable for any claim based on (i) [PARTY B]'s data, (ii) any modification of the Service not authorized by [PARTY A], or (iii) any use of the Service other than in accordance with the supporting documentation and this agreement.

 Indemnification by [PARTY B]. If a third party makes a claim against [PARTY A] that [PARTY B] data infringes any patent, copyright or trademark, or misappropriates any trade secret, [PARTY B] shall defend [PARTY A] and its directors, officers, and employees against the claim at [PARTY B]'s expense and [PARTY B] shall pay all losses, damages and expenses (including reasonable attorneys' fees) finally awarded against such parties or agreed to in a written settlement agreement signed by [PARTY B], to the extent arising from the claim.

 Conditions for Indemnification. A party seeking indemnification under this section shall

 promptly notify the other party of the claim,

 give the other party sole control of the defense and settlement of the claim, and

 provide, at the other party's expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.


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Software as a Service Agreement Indemnification
Non-Disclosure Agreement
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Indemnification. The Receiving Party shall indemnify the Disclosing Party against all losses suffered by the Disclosing Party arising out of:

Any unauthorized or improper use or disclosure by the Receiving Party or any of its Representatives of any Confidential Information; or

Any breach by the Receiving Party or any of its Representatives of the obligations of the Receiving Party under this agreement


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Neutral Non-Disclosure Agreement Indemnification
Unilateral: defects in goods or services
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 Indemnification. [PARTY B] shall pay [PARTY A] for any losses, damages, settlements, and expenses (including reasonable attorneys' fees) incurred by [PARTY A] arising out of, or resulting in any way from any defect in the goods or services purchased hereunder, or from any act or omission of [PARTY B], its agents, employees or subcontractors.


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Heavy Pro-Providee Purchase Indemnification

About


Overview

IACCM CONTRACTING PRINCIPLES
Indemnification of Third Party Claims (Excluding IP Claims)

IACCM

1. Definitions

The following definitions apply to these IACCM Contracting Principles:

  • "Indemnification" means that the indemnifying party (“Indemnitor”) will defend and be responsible for a claim made by a third party against the indemnified party (“Indemnitee”) to the extent that the Indemnitor expressly undertook the indemnification obligation with respect to the specific acts or omissions under the agreement that gave rise to the claim.  

2. General Concepts

These general concepts form the basis for the more detailed IACCM Contracting Principles that follow:

  • Although parties to a contract generally recognize that their acts or omissions under the agreement may affect third parties – particularly where a supplier is enabling a customer to provide its products or services downstream – the supplier should only be expected to step into the shoes of the customer in taking on risks that directly relate to the supplier’s acts or omissions under the contract.
  • Third parties should not be viewed as beneficiaries of an agreement between customers and suppliers unless expressly made so in the agreement.
  • Customers should be expected to undertake commercially reasonable efforts to shield themselves from liability (e.g., by including appropriate flow down terms in their own agreements with their end consumers or by means of appropriate insurance) and should not look to suppliers to act as insurers in the event those efforts are not successful in warding off claims.
  • The agreement is not the sole vehicle by which a party can hold the other party accountable for third party claims.  A party can also join the other party as a third-party defendant in litigation initiated by a third-party plaintiff.
  • Indemnification obligations should extend only to the degree that the indemnifying party was responsible for the damages incurred.  Proportionate liability should result from situations where multiple parties contributed to an event.
  • Supplier indemnification obligations should be tied to its own acts or omissions under the agreement as well as that of its subcontractors and agents.

(Note:  Indemnification for intellectual property infringement claims is addressed in the IACCM Contracting Principle – Intellectual Property Rights and Indemnification for Third Party IP Claims.)

3. IACCM Contracting Principles

3.1. Scope of Indemnification Obligations

  • Each party should indemnify the other for third party claims relating to (i) bodily injury, death, and real or tangible property damage due to a party’s negligence or wilful misconduct; and (ii) where relevant to the services provided, employment matters brought by employees of the indemnitor against the indemnitee.
  • Supplier should provide indemnification for “Protected Data Losses” to the extent resulting from supplier’s “Protected Data Non-Compliance” (as such terms are defined in IACCM Contracting Principles - Data Security and Privacy).
  • Supplier’s indemnification for governmental or regulatory fines or penalties incurred by the customer should be limited to those that are a direct result of the supplier’s breach of the agreement with respect to obligations to comply with applicable laws or regulations that apply to it.
  • Customers should indemnify suppliers for third party claims associated with the customers’ business operations, data, or business content that gave rise to the claim except to the degree the suppliers’ acts or omissions contributed to the damages.
  • The Indemnitees, which should be limited to the contracting party (and possibly also other directly related parties) should be specified in the agreement.  

3.2. Applicability of Liability Caps and Exclusions from Liability for Indemnification Obligations

  • Indemnification obligations should be subject to the same liability caps as would apply for similar claims made between the contracting parties (but see an exception under the IACCM Contracting Principle – Intellectual Property Rights and Indemnification for Third Party IP Claims).
  • Third party claims should be treated as direct damages regardless of their nature (but see an exception under the IACCM Contracting Principle – Data Security and Privacy).

3.3.  Conditions for Indemnification

  • The Indemnitee should have the same obligation to mitigate third party damages as it would to mitigate its own.
  • Any obligation to indemnify for third party claims should be preconditioned upon the following:
    • The extent of liability for the claim should be proportional to the fault on the part of the Indemnitor vis-à-vis the Indemnitee or any other party.
    • The Indemnitee must give prompt notice of the claim to the Indemnitor or relieve the latter for any incremental liability caused by the delay.
    • The Indemnitee must provide reasonable support to the Indemnitor in defense of the claim.
    • The Indemnitee has the right to engage its own counsel (at its own expense) to represent it, provided that the Indemnitor maintains control of the defense of the claim.
    • The Indemnitor cannot admit to guilt or fault on the Indemnitee’s part or agree to an obligation to be undertaken by the indemnitee without the express prior written consent of the latter.
    • The Indemnitor cannot take any action in the course of the defense that would bring in to question the reputation or goodwill of the Indemnitee.
    • In the event the Indemnitee demands the right to give prior consent to any settlement of the third-party claim, the Indemnitee should accept responsibility for any additional exposure caused by its failure to give consent to any settlement proposed by the Indemnitor.