(IndemnifierandIndemniteehereinafter jointly referred to as the "Parties" and individually as the "Party")
The Indemnifier wishes to minimise any hardship the Indemnitee might suffer as the result of any personal liability, suit, action, claim, damage or loss that may result from the Indemnitee's participation in theActivity;
The Indemnitee desires protection against any personal liability, suit, action, claim, damage or loss that may result from the Indemnitee's participation in theActivity;
IN CONSIDERATION and as a condition of the Indemnifier and the Indemnitee entering into this Agreement and other valuable consideration, the receipt and sufficiency of which consideration is acknowledged, the Indemnifier and the Indemnitee agree as follows:
1.1For the purpose of this Agreement, the "Activity" consists of the following:
2.1The Indemnifier will hold harmless and indemnify the Indemnitee against any and all claims and actions arising out of the participation of the Indemnitee in theActivity, including, but not limited to all costs incurred in the defence of any claim or action brought against the Indemnitee including legal fees (the "Expenses"), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any liability, suit, action, damage or loss arising or resulting from the Indemnitee's participation in theActivity, subject to the limits on indemnification described in the section3of this Agreement.
2.2Where prohibited by law, the indemnification described in clause2.1of this Agreement does not include indemnification of the Indemnitee against a claim caused by the negligence or fault of the Indemnitee, its agent or employee, or any third party under the control or supervision of the Indemnitee, other than the Indemnifier or its employees, subcontractors or agents.
2.3The Indemnifierindemnify the Indemniteein the case of a criminal proceeding.
2.4Indemnification under this Agreement will beas to amount.
3.1The Indemnitee will not be entitled to indemnification from the Indemnifier for any expenses, judgments, fines, settlements and other amounts actually and reasonably incurred as the result of the Indemnitee's participation in theActivitywhere:
3.1.1In the case of a criminal action, the Indemnifier has reasonable cause to believe the Indemnitee's conduct was unlawful;
3.1.2The actions or conduct of the Indemnitee constituted wilful misconduct or was knowingly fraudulent or deliberately dishonest;
3.1.3In the case of a civil claim, the Indemnitee did not act in good faith and in reasonable manner;
3.1.4The Indemnitee will or has received payment under a valid and collectable insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except where payment under this insurance policy, clause, bylaw or agreement is not sufficient to fully indemnify the Indemnitee in which case the Indemnifier will be responsible for any shortfall in payment received;
3.1.5An action or proceeding was initiated in whole or in part by the Indemnitee whether alone or along with one or more other claimants unless the action or proceeding has the written consent or the Indemnifier;
4.1The Indemnifiertake out and maintain insurance coverage with an insurer reasonably acceptable to the Indemnitee on terms reasonable and sufficient to indemnify the participation of the Indemnitee in theActivity.
Notice of Claim
5.1In the event of any claim or action, the Indemnitee will promptly provide the Indemnifier with written notice of the claim or action and will notify the Indemnifier withinbusiness days of the commencement of any legal proceedings relating to the claim or action. The Indemnitee will provide the Indemnifier with all available information known to the Indemnitee relating to the claim or action.
6.1In any case where the Indemnitee requires indemnification, the Indemnifier will make the determination of whether indemnification is appropriate having given consideration to the terms described in the section3of this Agreement. In all caseswill bear all costs of any independent determination .
6.2Thewill bear the burden of proving that indemnification is not appropriate.
6.3The termination of any claim or action by judgment, settlement, order, conviction or upon a plea of "nolo contendere" or its equivalentcreate a presumption that the person 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 the Indemnitee's conduct was unlawful.
Assumption of Defence
7.1On being notified of any impending action or claim, the Indemnifier may, at its own Expense, participate in the defence of any action or claim and may, alone or with any other indemnifying party, assume the defence against the action or claim using legal representatives that are reasonably satisfactory to the Indemnitee.
7.2Once the Indemnifier has notified the Indemnitee of the intention to assume the defence, the Indemnifier will no longer be liable to the Indemnitee for any further legal or other Expenses subsequently incurred by the Indemnitee in relation to the defence of the claim. The Indemnitee may on receipt of the notice of assumption of defence employ or continue to employ its own legal representatives however any fees or expenses incurred by the Indemnitee subsequent to the notice of assumption of defence by the Indemnifier will be the sole responsibility of the Indemnitee.
7.3If the Indemnifier elects not to assume the defence against the claim or action then the Indemnitee may defend the claim or action in any manner the Indemnitee deems appropriate. The Indemnifier will promptly reimburse the Indemnitee for expenses, fines, judgments, settlements and any other amounts actually and reasonably incurred in connection with the defence of the claim or action subject to the limits on indemnification described in the section3of this Agreement.
Settlement and Consent
8.1The Indemniteesettle any claim or action without first obtaining the written consent of the Indemnifier.The Indemnifier will not be liable for any amounts paid in settlement of any claim or action if written consent of the Indemnifier was not obtained. The Indemnifier will not unreasonably withhhold consent of any settlement.
8.2The Indemnifiersettle any claim or action without obtaining the written consent of the Indemnitee.The Indemnitee will not unreasonably withold consent to settlement.
9.1The Indemnifier agrees to cooperate in good faith and use best efforts to ensure the the Indemnitee is indemnified and reimbursed for any and all Expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with the defence of any claim or action resulting from the participation of the Indemnitee in theActivity.
9.2The Indemnitee agrees to cooperate in good faith and provide any and all information within the Indemnitee's power as required for the defence of any claim or action and also to provide any and all information within the Indemnitee's power as required to help in a determination of indemnification as described in section6of this Agreement.
9.3Each of the parties hereto shall execute and deliver any and all additional papers, documents, and other assurances, and shall do any and all acts and things, which are reasonably necessary (including, without limitation, the delivery by Assignor of any original Trademark registration certificates and all subsequent certificates should they issue to Assignor, including all executed assignment documents relating to this Agreement to Assignee promptly after the date listed above in connection with the performance by the parties of their obligations hereunder and to carry out the intent of the parties hereto.
10.1No costs, charges or Expenses for which indemnity will be sought under this Agreement may be incurred without the Indemnifier's written consent. Any required consent must not be unreasonably withheld.
10.2All reasonable Expenses incurred by the Indemnitee to enforce this Agreement and all costs of defending any third party claims or actions brought against the Indemnitee under this Agreement will be the sole responsibility of thesubject to the limits on indemnification described in the section3of this Agreement.
10.3The Indemnifieradvance to the Indemnitee any Expenses, including legal fees, incurred by the Indemnitee in defending any action brought against the Indemnitee (the "Advance Payments").
10.4The Indemnifier agrees to make the Advance Payments withindays of the written request of the Indemnitee.
10.5Advance Paymentsbe made prior to the disposition of any claim where reasonable and to minimise hardship to the Indemnitee.
10.6The Indemnitee agrees to repay to the Indemnifier any advance payments on Expenses where a determination is ultimately made that the Indemnitee's behaviour is not entitled to indemnification for reasons described under the section3of this Agreement.
11.1All payments made by the Indemnifier to the Indemnitee will be made in full in immediately available funds withindays of receipt of notice describing an amount owing under this Agreement by the Indemnifier to the Indemnitee (the "Notice of Indemnity").
11.2Any Notice of Indemnity must be made in writing and contain a full listing of the items to be covered in the payment. Any payment made by the Indemnifier to the Indemnitee will contain a full list of items covered under the payment.
11.3If any remedy or right claimed by the Indemnitee under this Agreement is denied or is not paid by the Indemnifier, or on its behalf, within_____days after a Notice of Indemnity has been submitted by the Indemnitee to the Indemnifier, the Indemnitee may then bring suit against the Indemnifier to recover any and all unpaid amounts and if successful in whole or in part, the Indemnitee will be entitled to be paid any and all costs related to resolving the claim.
11.4Where a determination as described under clause6of this Agreement concludes that the Indemnitee's behaviour is not entitled to indemnification, thiscreate a presumption that the Indemnitee is not entitled to indemnification under this Agreement.
12.1This Agreement will continuethe Indemnitee is or will be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, arbitrational, administrative or investigative that result from the participation of the Indemnitee in theActivity.
13.1In the event that any indemnity payment is made under this Agreement, the Indemnifier will be subrogated to the extent of this payment to all of the rights of recovery of the Indemnitee. The Indemnitee will take all action required and provide all information necessary to secure these rights and to fully enable the Indemnifier to take any action to enforce these rights in the recovery of the indemnity payment.
14.1Both Parties agree to keep all information pertaining to this Agreement (the 'Confidential Information') absolutely confidential and protect its release from the public. Both Parties agree not to divulge, reveal, report or use, for any purpose, any of the Confidential Information which the Parties have obtained or which was disclosed to any Party by the other Party as a result of this Agreement. Both Parties agree that if there is any question as to such disclosure then any Party will seek out the other Party prior to making any disclosure of the information of the other Party that may be covered by this Agreement.
14.2The Confidential Information will not include information that:
14.2.1Is now or subsequently becomes generally available to the public through no wrongful act of discovering Party;
14.2.2Was rightfully in the possession of any Party prior to the disclosure to such Party by the other Party;
14.2.3Any Party rightfully obtains from a third party who has the right to transfer or disclose it;
14.3The obligation to ensure and protect the confidentiality of the Confidential Information imposed on the parties in this Agreement and any obligation to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and will continuefrom the date of such expiration or termination.
14.4Any Party may disclose any of the Confidential Information:
14.4.1To the extent required by law or by the request or requirement of any judicial legislative, administrative or other governmental body;
14.4.2To a third party where other Party has consented in writing to such disclosure;
14.5If any Party loses or makes unauthorised disclosure of any of the Confidential Information, such Party will immediately notify the other Party and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
15.1The rights and obligations of theIndemnifieras existing under this Agreementbe assigned in whole or in part to a third party, without the prior written consent of theIndemnitee.
15.2The rights and obligations of theIndemniteeas existing under this Agreementbe assigned in whole or in part to a third party, without the prior written consent of theIndemnifier.
16.1All notices or other communications shall be deemed given upon personal delivery to the appropriate address, or if sent by certified or registered mail,days after the date of mailing to the following:
Individual Name: .
Individual Name: .
17.1Neither party shall be responsible for damages to the other party to the extent that a breach of this Agreement (or failure to perform) by such party is due to an act of god, strike or other labour dispute, war, terrorist activity, riot, civil disorder, embargo, fire, flood, weather condition, or any other casualty, beyond the reasonable control of such party (collectively, “Force Majeure”).
17.2During any delay in performance due to an event of Force Majeure, the disabled party shall use its reasonable efforts and due diligence to resolve the cause of the delay and to minimise the effects thereof. If any of the obligations of any of the parties is hindered or prevented, in whole or in substantial part, because of a Force Majeure event, then all other obligations of the parties shall continue. Delays or non-performance excused by this provision shall not excuse performance of any other obligation that is outstanding at the time of occurrence.
17.3Notwithstanding the preceding, in the event such Force Majeure continues for a period ofconsecutive months, either party shall have the right, but not the obligation, to serve a written notice on the other terminating this Agreement in full and each shall have no further obligation whatsoever to the other save that the Indemnifier or the Indemnitee shall continue to be obliged to make payments of monies due hereunder but not paid as at the date of termination.
18.1This Agreement shall be governed by and construed in accordance withlaw and the parties submit to the exclusive jurisdiction of theCourts of England and Waleswith regard to any dispute or claim arising under this Agreement.
Pronouns; Statutory References
19.1All pronouns and all variations thereof shall be deemed to refer to the masculine, feminine, or neuter, singular or plural, as the context in which they are used may require. Any reference to the Code, the Regulations, the Act, or other statutes or laws will include all amendments, modifications, or replacements of the specific sections and provisions concerned.
20.1In the event any claim is made by any Party relating to any conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this agreement was prepared by or at the request of a particular Party or the Party’s counsel.
References to this agreement
21.1Numbered or lettered articles, sections and subsections herein contained refer to articles, section and subsections of this Agreement unless otherwise expressly stated.
22.1All Exhibits attached to this Agreement are incorporated and shall be treated as if set forth herein.
23.1In the event that any term or provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such validity, illegality or unenforceability shall not affect any other term or provision, and this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.
24.1The paragraph headings used herein are descriptive only and shall not affect the meaning or interpretation of this Agreement.
25.1This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same Agreement.
26.1This Agreement constitutes the entire understanding between the parties with respect to the subject matter contained herein.
IN WITNESS WHEREOF, the Parties have duly affixed their signatures on_____
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