Indemnification and Liability. (a) The Company shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement. (b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5. (c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions. (d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person. (e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law. (f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (RiverBanc Multifamily Investors, Inc.), Contribution Agreement (RiverBanc Multifamily Investors, Inc.), Limited Liability Company Agreement (RiverBanc Multifamily Investors, Inc.)
Indemnification and Liability. (a) The Company Distributor shall defendindemnify, indemnify defend and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives TMP against: (whether or not employeesi) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses liability arising out of any nature (including attorneys’ fees and disbursements), judgments, fines, settlementsDistributor’s failure to comply with the terms of this Agreement, and other amounts any injury, loss, claims or damages arising from the negligent operations, acts or omissions of Distributor or his, her or its employees relating to this Agreement, including, without limitation, any and all claims, demands, actions, suits, violations of state or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, federal regulations relating to the performance extension of credit or nonperformance handling of any act concerning the activities of the Company, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company accounts receivable by Distributor; and (ii) did not constitute fraudany and all costs and expenses, willful misconductincluding reasonable legal expenses, bad faith, gross negligence, a knowing violation incurred by or on behalf of law TMP in connection with the defense of such claims. This section 4.4(a) shall survive expiration or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(ba) In the sole discretion of the Managing MemberNOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, expenses incurred by an Indemnitee in defending any claimTO THE MAXIMUM EXTENT PERMITTED BY LAW, demandTMP SHALL NOT BE RESPONSIBLE FOR ANY INCIDENTAL, actionCONSEQUENTIAL, suitINDIRECT, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claimSPECIAL, demandPUNITIVE, actionOR EXEMPLARY DAMAGES OF ANY KIND, suitINCLUDING DAMAGES FOR LOST GOODWILL, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5LOST PROFITS, LOST BUSINESS OR OTHER INDIRECT ECONOMIC DAMAGES, WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY) OR OTHER LEGAL THEORY, AS A RESULT OF A BREACH OF ANY WARRANTY OR ANY OTHER TERM OF THIS AGREEMENT, AND REGARDLESS OF WHETHER TMP WAS ADVISED OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 3 contracts
Sources: Medical Food Convenience Pack and Pharmaceutical Purchase Agreement (Targeted Medical Pharma, Inc.), Medical Food Convenience Pack and Pharmaceutical Purchase Agreement (Targeted Medical Pharma, Inc.), Medical Food Convenience Pack and Pharmaceutical Purchase Agreement (Targeted Medical Pharma, Inc.)
Indemnification and Liability. (a) 2.11.1 The Company shall defend, indemnify and hold harmless the current or former Members, Managing each Member, Tax Matters Partnereach Director and each Officer, Directorsand all affiliates, officers, executives (whether or not employees) and their respective Affiliatesdirectors, agents, officers, executives (whether or not employees)shareholders, partners, employees, representatives, directors, members, managers co-trustees, employees and shareholders agents of any of the foregoing (individually, an “"Indemnitee”") to the full fullest extent permitted by applicable law from and against any and all losses, claims, demands, costs, damages, liabilities (liabilities, joint and several), expenses of any nature (including attorneys’ ' fees and disbursements), judgments, fines, settlements, settlements and other amounts arising from any and all claims, demands, actions, suits, suits or proceedings, civil, criminal, administrative, administrative or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating arising out of or incident to the performance or nonperformance of any act concerning the activities business of the Company, if the unless such loss, claim, demand, cost, damage or liability was proximately caused by such Indemnitee’s conduct 's (i) was not acting (or failing to act) in good faith, within the scope of such Indemnitee’s authority faith and in a manner it reasonably believed to be in, or not contrary opposed to, the best interests of the Company and or (ii) did not constitute fraud, gross negligence or willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion of the Managing Member, expenses 2.11.2 Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, suit or proceeding subject to this Section 4.5 may 2.11 shall be advanced by the Company prior to the final disposition of such claim, demand, action, suit, suit or proceeding upon receipt by the Company of a written commitment an undertaking by or on behalf of the such Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified by the Company as authorized in Section 2.11.1.
2.11.3 The indemnification provided by this Section 4.52.11 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to an affirmative vote of Members holding fifty-one percent (51%) of the Percentage Interests in the Company, as a matter of law or equity or otherwise, and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(c) 2.11.4 Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense assets of the Company. No Neither any Member nor any Director nor any Officer shall be subject to personal liability by reason of these indemnification provisions.
(d) 2.11.5 No Indemnitee shall be denied indemnification in whole or in part under this Section 2.11 by reason of the fact that the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
2.11.6 The provisions of this Section 4.5 2.11 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee 2.11.7 Neither any Member nor any Director nor any Officer nor the affiliates, officers, directors, shareholders, partners, members, co-trustees, employees or agents of any of the foregoing shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee Member, Director, Officer or any such other Person if the Indemnitee’s conduct (i) was such Member, Director, Officer or such other Person acted (or failed to act) in good faith, within the scope of such Indemnitee’s authority, faith and in a manner it reasonably believed to be in, or not contrary opposed to, the best interests of the Company and (ii) the conduct of such Member, Director, Officer or such other Person did not constitute fraud, gross negligence, negligence or willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Niguel Energy Co), Limited Liability Company Agreement (Niguel Energy Co), Limited Liability Company Agreement (Niguel Energy Co)
Indemnification and Liability. In consideration of the appointment of Depositary Agent, each of the Company and the Guarantors agree jointly and severally:
(ai) The Company shall to defend, indemnify indemnify, pay and hold harmless harmless, the current or former Members, Managing Member, Tax Matters Partner, DirectorsDepositary Agent and each of its Affiliates and each and all of the directors, officers, executives (whether or not employees) and their respective Affiliatespartners, agents, officers, executives (whether or not employees), partnerstrustees, employees, attorneys and agents thereof, and (in each case) their respective heirs, representatives, directors, members, managers successors and shareholders assigns (individuallyeach of the foregoing, an “IndemniteeIndemnified Person”) to the full extent permitted by law from and against any and all lossesIndemnified Liabilities; and
(ii) to reimburse each Indemnified Person for all its expenses, claims, demands, costs, damages, liabilities (joint including reasonable fees and several), expenses of any nature (including attorneys’ fees counsel and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance court costs incurred by reason of any act concerning position or action taken by the activities Indemnified Person pursuant to this Agreement or in connection with any action brought to interpret or enforce the provisions of the Companythis Agreement or any part thereof; except, if the Indemnitee’s conduct with respect to each of clauses (i) was and (ii), to the extent that any such claim, loss, liability, damage, cost or expense is determined by a court of competent jurisdiction in good faitha final non-appealable judgment to have been caused by the Indemnified Person’s gross negligence or willful misconduct. The parties hereto hereby agree that no Indemnified Person shall be liable to such parties for any actions taken by any Indemnified Person pursuant to and in compliance with the terms hereof except in respect of any liability or expenses incurred by the Indemnified Person arising from its gross negligence or willful misconduct. Any Indemnified Person may consult with legal counsel of its selection in connection with this Agreement or the Indemnified Person’s duties hereunder, within and the scope Indemnified Person shall incur no liability and shall be fully protected in acting in accordance with the opinion and advice of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests counsel. The obligations of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach the Guarantors under this Section shall survive the termination of this Agreement. The termination of an action, suit, Agreement and the earlier resignation or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion removal of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5Depositary Agent.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 2 contracts
Sources: Credit Agreement (Offshore Logistics INC), Credit Agreement (Offshore Logistics INC)
Indemnification and Liability. (a) 5.6.1 The Company shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partnereach of its members, Directorsmanagers, officersofficers and agents, executives (whether or not employees) each of the Members and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers managers, officers and shareholders agents and all officers and agents of the Company (individually, each an “Indemnitee”) to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several)liabilities, expenses of any nature (including reasonable attorneys’ fees and disbursementsdisbursements and other costs of litigation, whether pending or threatened), judgments, fines, settlements, settlements and other amounts amounts, of any nature whatsoever, known or unknown, liquid or unliquid (collectively, “Liabilities”) arising from any and all claims, demands, actions, suits, suits or proceedings, whether civil, criminal, administrative, administrative or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating arising out of or incident to the performance or nonperformance of any act concerning the activities business of the Company, if (a) the Indemnitee’s conduct (i) was Indemnitee acted in good faith, faith in a manner such Person believed to be within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company Company, and (iib) the Indemnitee’s conduct did not constitute fraud, bad faith, willful misconduct, bad faith, gross negligence, a knowing violation of law negligence or a material breach of this Agreement. The termination of an actionNotwithstanding anything to the contrary herein, suit, or proceeding by judgment, order, settlement, or upon the foregoing indemnity shall not extend to any Liabilities arising from a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the IndemniteeMember’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreementits representations, warranties, covenants or acknowledgements in Section 8.2.
(b) In the sole discretion of the Managing Member, expenses 5.6.2 Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, suit or proceeding subject to this Section 4.5 may 5.6 shall be advanced by the Company prior to the final disposition of such claim, demand, action, suit, suit or proceeding upon receipt by the Company of a satisfactory written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.55.6.
(c) 5.6.3 The indemnification provided by this Section 5.6 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law or equity or otherwise, and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
5.6.4 Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the CompanyCompany Assets. No Member Member, or owner of any Member, shall be subject to personal liability by reason of these indemnification provisions.
(d) The 5.6.5 No Indemnitee shall be denied indemnification in whole or in part under this Section 5.6 by reason of the fact that the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
5.6.6 Except as set forth in Section 5.6.3, the provisions of this Section 4.5 5.6 are for the benefit of the Indemnitees only and shall not be deemed to create any rights for the benefit of any other Person.
5.6.7 None of the officers of the Company, the Managing Member or any Member (eexcept as provided in Section 8.2) No Indemnitee shall be liable to the Company or to a any other Member for any losses Liabilities sustained or liabilities incurred as a result of any act or omission of such Indemnitee Person if the Indemnitee’s conduct (ia) was such Person acted in good faith, faith in a manner such Person believed to be within the scope of such IndemniteePerson’s authority, authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company Company, and (iib) such Person’s conduct did not constitute fraud, gross negligencebad faith, willful misconduct, misconduct or a knowing violation material breach of lawthis Agreement.
(f) Any repeal or modification 5.6.8 The Managing Member is hereby authorized on behalf of this Section 4.5 by the Members shall not adversely affect Company to cause the Company to indemnify, hold harmless and release any rights agents and/or advisors of such Indemnitee pursuant to this Section 4.5the Company, including the right to indemnification Managing Member and the Company’s Affiliates, to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification same extent provided with respect to any acts or omissions occurring prior to such repeal or modificationthe Indemnitees in this Section 5.6.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Sentio Healthcare Properties Inc), Limited Liability Company Agreement (Sentio Healthcare Properties Inc)
Indemnification and Liability. (a) The Company shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted 25.1 Except as required by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee Article 25.2 neither Party shall be liable to the Company other Party in contract, tort, warranty, strict liability or to a Member any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages.
25.2 The limitation[s] of liability set out above shall not apply in the case of the wilful default or gross negligence of either Party.
25.3 Except as specifically provided elsewhere in this Agreement, the Purchaser shall indemnify and defend the Producer, for itself and as trustee for its officers, directors and employees against, and hold the Producer, its officers, directors and employees harmless from, at all times after the date hereof, any and all losses incurred, suffered, sustained or liabilities incurred as a result required to be paid, directly or indirectly, by, or sought to be imposed upon, the Producer, its officers, directors and employees, for personal injury or death to persons or damage to property arising out of any negligent or intentional act or omission by the Purchaser in connection with this Agreement. Notwithstanding anything to the contrary contained in the preceding sentence, nothing in this Article 25.3 shall apply to any Loss in respect of and to the extent which the Producer receives proceeds from insurance policies or indemnification from another party.
25.4 The Producer shall indemnify and defend the Purchaser, for itself and as trustee for its officers, directors and employees against, and hold the Purchaser, its officers, directors and employees harmless from, at all times after the date hereof, any and all Loss, incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be imposed upon, the Purchaser, its officers, directors and employees, for personal injury or death to persons or damage to property arising out of any negligent or intentional act or omission by the Producer in connection with this Agreement. Notwithstanding anything to the contrary contained in the preceding sentence, nothing in this Article 25.4 shall apply to any Loss in respect of and to the extent to which the Purchaser receives proceeds from insurance policies.
25.5 Any fines or other penalties incurred by a Party for non-compliance with the applicable Kosovo Legislation, unless they result directly from an act or omission of the other Party (in which case, they shall be reimbursed by the other Party), shall not be reimbursed by the other Party but shall be the sole responsibility of the non-complying Party.
25.6 The indemnifying Party shall be entitled, at its option and expense and with counsel of its selection, to assume and control the defence of such Indemnitee if claim, action, suit or proceeding at its expense, with counsel of its selection, subject to the Indemnitee’s conduct prior approval of the indemnified Party; provided, however, it gives prompt notice of its intention to do so to the indemnified Party, and reimburses the indemnified Party for the reasonable costs and expenses incurred by the indemnified Party prior to assumption by the indemnifying Party of such defence.
25.7 Unless and until the indemnifying Party acknowledges in writing its obligation to indemnify the indemnified Party and assumes control of the defence of a claim, suit, action or proceeding in accordance with Article 25.6, the indemnified Party shall have the right, but not the obligation, to contest, defend and litigate, with counsel of its own selection, any claim, action, suit or proceeding by any third party, alleged or asserted against such Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder, and the reasonable costs and expense thereof shall be subject to the indemnification obligations of the indemnifying Party hereunder.
25.8 Upon assumption by the indemnifying Party of the control of the defence of a claim, suit, action or proceeding, the indemnifying Party shall reimburse the indemnified Party for the reasonable costs and expenses of the indemnified Party in the defence of the claim, suit, action or proceeding prior to the indemnifying Party‟s acknowledgment of the indemnification and assumption of the defence.
25.9 Neither Party shall be entitled to settle or compromise any such claim, action, suit or proceeding without the prior written consent of the other Party, provided, however, that after agreeing in writing to indemnify the indemnified Party, the indemnifying Party may settle or compromise any claim without the approval of the indemnified Party.
25.10 Following acknowledgment of the indemnification and assumption of the defence by the indemnifying Party, the indemnified Party shall have the right to employ its own counsel, and such counsel may participate in such action, but the fees and expenses of such counsel shall be at the expense of such indemnified Party, when and as incurred, unless (i) was the employment of counsel by such indemnified Party has been authorized in good faithwriting by the indemnifying Party, within (ii) the indemnified Party shall have reasonably concluded that there may be a conflict of interest between the indemnifying Party and the indemnified Party in the conduct of the defence of such action, (iii) the indemnifying Party shall not in fact have employed independent counsel reasonably satisfactory to the indemnified Party to assume the defence of such action and shall have been so notified by the indemnified Party, or (iv) the indemnified Party shall have reasonably concluded and specifically notified the indemnifying Party either that there may be specific defences available to it that are different from or additional to those available to the indemnifying Party or that such claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the scope of such Indemnitee’s authoritythis Agreement. If Article (ii), and in a manner it reasonably believed to be in, (iii) or not contrary to, the best interests (iv) of the Company and (ii) did not constitute fraudpreceding sentence shall be applicable, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 by then counsel for the Members indemnified Party shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including have the right to indemnification and to direct the advancement of expenses of an Indemnitee existing at the time defence of such repeal claim, action, suit or modification with proceeding on behalf of the indemnified Party and the reasonable fees and disbursements of such counsel shall constitute legal or other expenses hereunder.
25.11 Each Party shall promptly notify the other Party of any Loss, claim, proceeding or other matter in respect of which it is or it may be entitled to any acts or omissions occurring prior to such repeal or modification.indemnification under this Article
Appears in 2 contracts
Indemnification and Liability. 12.1 To the fullest extent permitted by applicable law (aincluding, without limitation, in the case of Company, the applicable provisions of any governing federal or state tariff), each Party (the "Indemnifying Party") The Company shall defend, indemnify and hold harmless harmless, and at the current or former Membersother Party's option, Managing Memberdefend the other Party, Tax Matters Partner, Directorsits Affiliates and their respective contractors, officers, executives (whether or not employees) and their respective Affiliatesdirectors, servants, agents, officers, executives (whether or not employees), partners, employees, representatives, directorsand employees (each, members, managers and shareholders (individually, an “Indemnitee”) to "Indemnified Party" and, collectively, the full extent permitted by law "Indemnified Parties"), from and against any and all liabilities, damages, losses, claims, demands, costs, damagesexpenses (including, liabilities (joint without limitation, any and several), expenses of any nature (including all reasonable attorneys’ ' fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actionscauses of action, suits, liens, claims, damages, penalties, obligations, demands or proceedingsjudgments of any nature, civilincluding, criminalwithout limitation, administrativefor death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, "Damages"), incurred by any Indemnified Party to the extent caused by the negligence, unlawful act or omission, or investigativeintentional misconduct of the Indemnifying Party, its Affiliates or their respective contractors, officers, directors, servants, agents, representatives, and employees, arising out of or in which connection with any Work performed pursuant to this Agreement, except to the Indemnitee may be involvedextent such Damages are caused by the negligence, unlawful act or omission, or threatened intentional misconduct of the Indemnified Party, its Affiliates or their respective contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Developer shall protect, indemnify and hold harmless Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to be involved as a party any delay directly caused by Company or the applicable Company Affiliate.
(a) The Company's total cumulative liability for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, relating to the performance or nonperformance of for any act concerning the activities of the Companyloss, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be ininjury, or not contrary todamage connected with, the best interests of or resulting from, this Agreement or the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalentWork, shall not, in and not exceed the aggregate amount of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of all payments made to Company by Developer as Company Reimbursable Costs under this Agreement.
(b) In the sole discretion of the Managing MemberThe limitation contained in Section 12.3(a) shall not apply to damages for personal injury (including, expenses incurred by an Indemnitee in defending any claimwithout limitation, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior death) to the final disposition of extent such claim, demand, action, suit, or proceeding upon receipt damages are covered by proceeds from the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5Company's third party insurance policies.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee 12.4 Neither Party shall be liable to the Company other Party or to a Member any Indemnified Party for any losses sustained consequential, indirect, special, incidental, multiple, or liabilities incurred punitive damages in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred. Anything in this Agreement to the contrary notwithstanding, if any Party's or Indemnified Party's liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.5 Neither Party shall be liable to the other Party or to any Indemnified Party for claims or damages for lost profits, delays, loss of use or business interruption, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or any third party. For the avoidance of doubt: Company shall have no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of Developer or its contractors to cooperate or to perform any act tasks or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed responsibilities contemplated to be inperformed or undertaken by Developer under this Agreement (including, without limitation, the Developer Work), (b) any unforeseen conditions or occurrences beyond the reasonable control of Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or not contrary to, (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the best interests subject matter of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of lawthis Agreement.
(f) Any repeal or modification 12.7 Notwithstanding any other provision of this Section 4.5 by Agreement, this Article shall survive the Members shall not adversely affect any rights termination, cancellation or expiration of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modificationAgreement.
Appears in 2 contracts
Sources: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Indemnification and Liability. (a) The 12.1 Indemnity by the Company shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) In addition to the full extent permitted by law from Company’s obligations and against GPL’ remedies provided elsewhere in this Agreement, the Company will bear responsibility for loss of or damage to property, death or injury to person, and any and all losses, claims, demands, costsother liabilities, damages, liabilities losses and reasonable costs and expenses (joint including, but not limited to, legal fees and several)expert witness fees) (or any claim against GPL in respect thereof) suffered by GPL as a direct and foreseeable consequence of the Company’s conduct:
12.1.1 During the design, expenses financing, construction, ownership, operation, or maintenance of the Facility resulting from any negligent act or omission of the Company its servants or agents, and through no fault of GPL, its servants or agents;
12.1.2 In connection with, arising out of, or resulting from, any breach of warranty, material misrepresentation by the Company, or non-performance of any nature (including attorneys’ fees term, condition, covenant or obligation to be performed by the Company under this Agreement or any other agreement comprising Material Agreements; or
12.1.3 Arising out of the failure of the Company’s representatives and/or agents and/or contractors to observe the health and disbursements)safety procedures, judgments, fines, settlementsguidelines, and other amounts arising policies of GPL while on property owned and/or controlled by GPL provided that the safety rules, guidelines, and procedures were prominently displayed or otherwise communicated to them;
12.1.4 In connection with any claim, proceeding or action brought against GPL under any applicable national or local environmental laws or regulations resulting from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if including without limitation the Indemnitee’s conduct (i) was in good faithdischarge, within dispersal, release, storage, treatment, generation, disposal or escape of pollutants or other toxic or hazardous substances from the scope Facility, the contamination of such Indemnitee’s authority and in a manner it reasonably believed to be inthe soil, air, or not contrary towater around the Site, or any pollution abatement, replacement, removal or other decontamination or monitoring obligations with respect thereto; provided that with respect to this Clause 12.1.3, the best interests of the Company and (ii) did shall not constitute fraudbe responsible for any liabilities, willful misconductdamages, bad faithlosses, gross negligencecosts or expenses suffered by GPL unless such liabilities, a knowing violation of law damages, losses, costs or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.
(c) Any indemnification provided hereunder shall be satisfied solely out of resulted from the Company’s assetsviolation of national or local environmental laws or regulations, as an expense determined by a court, governmental authority or arbitrator of competent jurisdiction. The Company will hold GPL fully indemnified in respect of the foregoing losses, damages, death, injuries, liabilities, costs, and expenses. The Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and ’s indemnities, however, shall not be deemed extend to create any rights for the benefit of loss, damage, death, injury, liability, cost, or expense (or any other Person.
(eclaim in respect thereof) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of extent that it was caused by any act or omission of such Indemnitee if GPL or the Indemnitee’s conduct (i) was failure of GPL to take reasonable steps in good faithmitigation thereof or the breach by GPL, within its servants or agents of the scope provisions of such Indemnitee’s authorityClause 6.9.2 hereof. Notwithstanding anything to the contrary contained in this Clause 12.1, and nothing in a manner it reasonably believed this Clause 12.1 shall apply to be inany loss, damage, death, injury, liability, cost, or not contrary toexpenses (or any claim in respect thereof) to the extent that, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee GPL is compensated pursuant to this Section 4.5, including the right to indemnification and to terms of any agreement comprising the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modificationMaterial Agreements.
Appears in 2 contracts
Indemnification and Liability. (a) The Company 15.1 Customer shall defenddefend and indemnify SHL and its Affiliates, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, its officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, and employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law from and against any and all third party claims, losses, claimsdamages, demandsinjuries, costs, damages30 or expenses that may be sustained., liabilities (joint and several)suffered, or incurred by any of the foregoing, including without limitation, expenses of any nature (including litigation and reasonable attorneys’ fees for: (i) any breach of Customer’s representations, warranties, or obligations under this Agreement, or non-fulfillment of or failure to perform any covenant or agreement made by Customer in this Agreement, which breach of representations shall include, for the avoidance of doubt, the infringement of any third party’s Intellectual Property by the use of Customer Materials by SHL, as permitted hereunder; (ii) any personal injury, death or property damage caused by the possession, use of Customer Materials or consumption by any person of the Drug Product to the extend such injury, death or damage was not caused by a defect or malfunction of the Device; (iii) any manufacturing defect in the Drug Product or the Primary Packaging; (iv) the use of any Primary Packaging or Drug Product supplied to SHL by Customer; and disbursements)(v) any other intentional act, judgmentsnegligent act or omission on the part of Customer or its respective employees or agents, finesill each case, settlementsto the extent any such losses are not the result of the negligence or willful misconduct of SHL.
15.2 SHL shall defend and indemnify Customer and its Affiliates, and other amounts arising its officers, agents, and employees, from any and against all third party claims, demandslosses, actionsdamages, suitsinjuries, costs, or proceedingsexpenses that may be sustained, civil, criminal, administrativesuffered, or investigativeincurred by any of the foregoing, including without limitation, expenses of litigation and reasonable attorneys’ fees for (i) any breach of SHL’s representations, warranties, or obligations under this Agreement, or non-fulfillment of or failure to perform any covenant or agreement made by SHL m this Agreement, which breach of representations shall include, for the avoidance of doubt, the infringement of any third party’s Intellectual Property by the manufacture, use, sale, importation, assembly or distribution of the Device in the Territory by Customer; (ii) any personal injury, death or property damage caused by the possession, use or consumption by any person of the Device that is a result of SHL’s actions or inactions, to the extent such personal injury, death or property damage was not caused by the possession, or use of any of the Customer Materials or consumption of the Drug Product; (iii) any personal injury, death or property damage caused by the possession, use or consumption by any person of the Device that is a result of SHL’s actions or inactions, to the extent such personal injury, death or property damage was not caused by the possession, use of any of the Customer Materials or consumption of the Drug Product; and (iv) any other intentional act, negligent act or omission on the part of SHL or its employees or agents including, without limitation, SHL’s failure to comply with all applicable laws, rules and regulatory requirements within the Territory concerning the Device, except if any such claim arises from a negligent act or omission or the intentional misconduct of Customer.
15.3 In the event that any claim is asserted against any Party hereto, or any Party hereto is made a Party defendant in any action or proceeding, and such claim, action or proceeding involves a matter which is subject to a claim for indemnification under this Article 15, then such Party (an “Indemnified Party”) shah promptly give written notice to the other Party (the “Indemnifying Party”) of such claim, action or proceeding, and such Indemnifying Party shall have the right to join in the defense of said claim, action or proceeding, at such Indemnifying Party’s own cost and expense, and if the Indemnifying Party agrees in writing to be bound by and to promptly pay the full amount of any final judgment from which no further appeal may be taken and if the Indemnified Party is reasonably assured of the Indemnifying Party’s ability to satisfy such agreement, then at the option of the Indemnifying Party, such Indemnifying Party may take over the defense of such claim, action or proceeding, except drat, in such case, the Indemnified Party shall have the right to approve any attorney or counsel selected by the Indemnifying Party (which approval shall not be unreasonably delayed or withheld) and to join in the Indemnitee may be involveddefense of said claim, action or proceeding at its own cost and expense. In no event shall either Party institute, settle, or threatened to be involved as a party otherwise resolve any claim or otherwisepotential claim, action or proceeding relating to the performance Product or nonperformance intellectual Property of any act concerning or licensed by SHL under the activities terms of this Agreement without the prior written consent of the Company, if other Party.
15.4 In no event shall either Party be liable to the Indemnitee’s conduct other Party under this Agreement for: (i) was in good faithany indirect, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be inconsequential, incidental, punitive, or not contrary to, the best interests of the Company special damages; and (ii) did not constitute fraudlost profits, willful misconductloss of use, bad faithloss of data, gross negligenceloss of revenue, a knowing violation of law or a material breach damages resulting from value added to the Product.
15.5 In no event shall either Party’s total liability to the other Party arising under this Agreement, including any indemnification paid by either Party pursuant to Sections 15.1 and 15.2 of this Agreement. The termination of an action, suitAgreement exceed the total amount received by SHL from Customer under this Agreement during any [***] period beginning on the Effective Date, or proceeding by judgmentthe sum of [***], order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreementwhichever is lesser.
(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 1 contract
Sources: Product Supply Agreement (Xeris Pharmaceuticals Inc)
Indemnification and Liability. (a) The Company 7.1 Indemnification To the extent of its comparative liability, each party shall indemnify, defend, indemnify and hold harmless the current or former Membersother party, Managing Memberits departments, Tax Matters Partner, Directors, officers, executives (whether or not employees) elected and their respective Affiliates, agents, officers, executives (whether or not employees), partnersappointed officials, employees, representativesand agents, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law harmless from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, damages, losses, actions, suitsliabilities, costs, and expenses, including attorney’s fees, for any bodily injury, sickness, disease, or proceedings, civil, criminal, administrativedeath, or investigativeany damage or destruction of property, in including the loss of use therefrom, which the Indemnitee may be involved, are alleged or threatened proven to be involved as caused in whole or in part by a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any negligent act or omission of such Indemnitee if the Indemniteeother party, its officials (elected or appointed), officers, directors, employees and agents. If the claim, suit or action for injuries, death or damages as provided for in the preceding paragraph is caused by or results from the concurrent negligence of the parties or their respective agents or employees, the indemnity provision shall be valid and enforceable only to the extent of the indemnitor’s/indemnitee’s conduct (i) was negligence. Industrial Insurance Act: The indemnification obligations contained in good faiththis Section 7.1 shall not be limited by any worker’s compensation, within the scope of such Indemnitee’s authoritybenefit or disability laws, and in a manner it reasonably believed to be ineach indemnifying party hereby waives any immunity that said indemnifying party may have under the Washington Industrial Insurance Act, Title 51 RCW, and similar worker’s compensation, benefit or not contrary to, the best interests of the Company and disability laws. THE PARTIES ACKNOWLEDGE BY THEIR EXECUTION OF THIS AGREEMENT THAT EACH OF THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT (iiSPECIFICALLY INCLUDING BUT NOT LIMITED TO THOSE RELATING TO WORKER’S COMPENSATION BENEFITS AND LAWS) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of lawWERE SPECIFICALLY NEGOTIATED AND AGREED TO BY THE PARTIES.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 1 contract
Sources: Interlocal Cooperative Agreement
Indemnification and Liability. (a) The Company 12.1. ETHIACK shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) You and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers Your representatives and shareholders (individually, an “Indemnitee”) to the full extent permitted by law employees from and against any and all losses, claims, demands, costs, damages, liabilities (joint losses and several)expenses, expenses of any nature (including reasonable attorneys’ fees and disbursements)other legal expenses, judgments, fines, settlements, and other amounts arising from any third-party claim that use of the Service as expressly permitted herein violates any third-party Intellectual Property Rights.
12.2. You shall defend, indemnify and hold harmless ETHIACK and its representatives and employees from and against all claimscosts, demandsdamages, actionslosses and expenses, suitsincluding reasonable attorneys’ fees and other legal expenses, or proceedings, civil, criminal, administrative, or investigativearising from any third-party claims that: (a) Your use of the Service, in which violation of the Indemnitee may be involvedterms of this Agreement, infringes any third-party rights, including without limitation, infringement or threatened to be involved as a party or otherwise, relating to the performance or nonperformance violation of any act concerning the activities third-party Intellectual Property Rights or privacy rights; (b) You do not hold all necessary authorizations, approvals and permissions necessary for lawful use of the CompanyService, if the Indemnitee’s including to conduct Tests; or (ic) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests Your use of the Company and Service is in any other way in breach of the acceptable use of the Service as set out in Section 7.
12.3. In no event shall ETHIACK be liable to You or Your Affiliates for any direct or indirect damages resulting from Your or Your Affiliates’ use of the Service, provided that ETHIACK has provided the Service in accordance with the Agreement. Furthermore, in no event shall ETHIACK be liable for the accuracy or availability of any integrated services or products provided by third parties.
12.4. Nothing in these Terms or the Agreement shall operate to exclude or restrict either Party’s liability for (iia) did not constitute fraud, any damage caused by willful misconduct, bad faith, gross negligence, or fraud; or (b) the specific indemnity undertakings made by a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in Party under Paragraph 12.1 and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach 12.2 of this Agreement.
(b) In 12.5. ETHIACK’s total liability hereunder shall, subject to Paragraph 12.4, for all damage arising under the sole discretion Agreement, be limited to 100% of the Managing Member, expenses incurred total fees paid or payable by an Indemnitee You under the Agreement in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to contract year in which the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5breaches occurred.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 1 contract
Sources: Terms of Service
Indemnification and Liability. (a) 6.6.1 The Company shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives each of the Members and all officers and agents of the Company (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, each an “Indemnitee”) to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several)liabilities, expenses of any nature (including attorneys’ fees and disbursementsdisbursements and other costs of litigation, whether pending or threatened), judgments, fines, settlements, settlements and other amounts amounts, of any nature whatsoever, known or unknown, liquid or illiquid (collectively, “Liabilities”) arising from any and all claims, demands, actions, suits, suits or proceedings, whether civil, criminal, administrative, administrative or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating arising out of or incident to the performance or nonperformance of any act concerning the activities business of the Company, if (a) the Indemnitee’s conduct (i) was Indemnitee acted in good faith, faith in a manner such Person believed to be within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company Company, and (iib) the Indemnitee’s conduct did not constitute fraud, bad faith or willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere contendre or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, Indemnitee acted in a knowing violation of law, a material breach of this Agreement.
manner contrary to that specified in clauses (a) or (b) In above. For purposes of this Section 6.6, reasonable reliance upon the sole discretion advice of legal counsel shall raise a rebuttable presumption of “good faith.” Notwithstanding anything to the Managing contrary herein, the foregoing indemnity shall not extend to any Liabilities arising from a Member’s breach of its representations, expenses warranties, covenants or acknowledgements in Section 9.2 hereof.
6.6.2 Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, suit or proceeding subject to this Section 4.5 may 6.6 shall be advanced by the Company prior to the final disposition of such claim, demand, action, suit, suit or proceeding upon receipt by the Company of a satisfactory written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.56.6.
(c) 6.6.3 The indemnification provided by this Section 6.6 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law or equity or otherwise, and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
6.6.4 Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the CompanyCompany Assets. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The 6.6.5 No Indemnitee shall be denied indemnification in whole or in part under this Section 6.6 by reason of the fact that the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
6.6.6 Except as set forth in Section 6.6.3 hereof, the provisions of this Section 4.5 6.6 are for the benefit of the Indemnitees only and shall not be deemed to create any rights for the benefit of any other Person.
6.6.7 None of the Officers of the Company, the Managing Member or any Member (eexcept as provided in Section 9.2.4(b) No Indemnitee hereof) shall be liable to the Company or to a any other Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee Person if the Indemnitee’s conduct (i) was such Person acted in good faith, faith in a manner such Person believed to be within the scope of such IndemniteePerson’s authority, authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company Company, and (ii) such Person’s conduct did not constitute fraud, gross negligencebad faith, willful misconductmisconduct or a material breach of this Agreement.
6.6.8 The Managing Member is hereby authorized on behalf of the Company to cause the Company to indemnify, hold harmless and release any agents and/or advisors of the Company, the Managing Member and the Company’s Affiliates, to the same extent provided with respect to the Indemnitees in this Section 6.6.
6.6.9 To the extent that, at law or in equity, the Members have duties (including fiduciary duties) and liabilities relating thereto to the Company, any Member or other Person bound by the terms of this Agreement, such Members acting in good faith in accordance with this Agreement shall not be liable to the Company, any other Member, or any such other Person for their good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they expand or restrict the duties and liabilities of a knowing violation of Member otherwise existing at law or in equity, are agreed by all parties hereto to modify to that extent such other duties and liabilities to the greatest extent permitted under applicable law.
(f) Any repeal 6.6.10 Each Member shall have a duty to act in good faith. Subject to the foregoing sentence, but notwithstanding anything else in this Agreement to the contrary or modification of this Section 4.5 by otherwise applicable law, whenever a Member or the Members are required or permitted to make a decision, take or approve an action, or omit to do any of the foregoing: (a) “in its discretion,” under a similar grant of authority or latitude, or without an express standard of behavior (including, without limitation, standards such as “reasonable”), then each Member shall be entitled to consider only such interests and factors, including its own, as it desires, and shall, to the fullest extent permitted by law, have no duty or obligation to consider any other interests or factors whatsoever (other than the duty to act in good faith), or (b) with an express standard of behavior (including, without limitation, standards such as “reasonable”), then each Member shall comply with such express standard but shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect be subject to any acts other, different or omissions occurring prior to such repeal or modificationadditional standard (other than the standard of good faith).
Appears in 1 contract
Sources: Formation and Contribution Agreement (Nationwide Health Properties Inc)
Indemnification and Liability. (a) 6.9.1 The Company shall defend, indemnify and hold harmless all officers and agents of the current or former MembersCompany, Managing Member, the Tax Matters Partner, Directorsthe Partnership Representative and each of the Directors and Members, officersincluding the Member Representative, executives (whether or not employees) and their respective Affiliates, agents, officers, executives Related Persons (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, each an “Indemnitee”) to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several)liabilities, expenses of any nature (including reasonable attorneys’ fees and disbursementsdisbursements and other costs of litigation, whether pending or threatened), judgments, fines, settlements, settlements and other amounts amounts, of any nature whatsoever, known or unknown, liquid or unliquid (collectively, “Liabilities”) arising from any and all claims, demands, actions, suits, suits or proceedings, whether civil, criminal, administrative, administrative or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating arising out of or incident to the performance or nonperformance of any act concerning the activities of the CompanyBusiness, if (a) the Indemnitee’s conduct (i) was Indemnitee acted in good faith, faith in a manner such Person believed to be within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company Company, and (iib) the Indemnitee’s conduct did not constitute fraud, bad faith, willful misconduct, bad faith, gross negligence, a knowing violation of law negligence or a material breach of this Agreement. The termination Notwithstanding Doc#: US1:15482657v3 anything to the contrary herein, the foregoing indemnity shall not extend to any Liabilities of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the IndemniteeMember arising from such Member’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of any of its representations, warranties, covenants, agreements or acknowledgements in this AgreementAgreement or any of the other Transaction Documents.
(b) In the sole discretion of the Managing Member, expenses 6.9.2 Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, suit or proceeding subject to this Section 4.5 may 6.9 shall be advanced by the Company prior to the final disposition of such claim, demand, action, suit, suit or proceeding upon receipt by the Company of a satisfactory written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.56.9.
6.9.3 The indemnification provided by this Section 6.9 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law or equity or otherwise, and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee. The Company hereby acknowledges that certain Indemnitees (the “Specified Indemnitees”) may have rights to indemnification and advancement of expenses provided by a Member or its Affiliates (directly or by insurance retained by such entity) (collectively, the “Member Indemnitors”). The Company hereby agrees and acknowledges that (a) it is the indemnitor of first resort with respect to the Specified Indemnitees, (b) it shall be required to advance the full amount of expenses incurred by the Specified Indemnitees, as required by the terms of this Agreement (or any other agreement between the Company and the Specified Indemnitees), without regard to any rights the Specified Indemnitees may have against the Member Indemnitors and (c) it irrevocably waives, relinquishes and releases the Member Indemnitors from any and all claims against the Member Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Member Indemnitors on behalf of the Company with respect to any claim for which the Specified Indemnitees have sought indemnification from the Company shall affect the foregoing and the Member Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Specified Indemnitees against the Company.
6.9.4 Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the CompanyCompany Assets. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The 6.9.5 No Indemnitee shall be denied indemnification in whole or in part under this Section 6.9 by reason of the fact that the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
6.9.6 Except as set forth in Section 6.9.3, the provisions of this Section 4.5 6.9 are for the benefit of the Indemnitees only and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee 6.9.7 None of the Tax Matters Partner, the Partnership Representative nor the officers of the Company, of the Board or of any Member shall be liable to Doc#: US1:15482657v3 the Company or to a any other Member for any losses Liabilities sustained or liabilities incurred as a result of any act or omission of such Indemnitee Person if the Indemnitee’s conduct (ia) was such Person acted in good faith, faith in a manner such Person believed to be within the scope of such IndemniteePerson’s authority, authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company Company, and (iib) such Person’s conduct did not constitute fraud, gross negligencebad faith, willful misconduct, misconduct or a knowing violation material breach of lawthis Agreement or any of the other Transaction Documents.
(f) Any repeal or modification 6.9.8 The Board is hereby authorized on behalf of this Section 4.5 by the Members shall not adversely affect Company to cause the Company to indemnify, hold harmless and release any rights agents and/or advisors of such Indemnitee pursuant to this Section 4.5the Company, including the right to indemnification Board and the Company’s Affiliates, to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification same extent provided with respect to any acts or omissions occurring prior to such repeal or modificationthe Indemnitees in this Section 6.9.
Appears in 1 contract
Sources: Limited Liability Company Agreement (American Healthcare REIT, Inc.)
Indemnification and Liability. (a) The Company 10.1 ▇▇▇▇▇▇ shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law Stellar from and against any all losses (other than loss of profits), damages (other than indirect, special, consequential and all losses, claims, demands, costs, punitive damages), liabilities and expenses (joint including reasonable attorneys' fees) for personal injury or property damage to a third party arising out of the use of the Products marketed by ▇▇▇▇▇▇, its Affiliates or sub-licensees insofar as any such claim for loss, liability and severalexpense is based upon the willful misconduct or negligence of ▇▇▇▇▇▇, its affiliates or sub-licensees. To the extent that they are available, the proceeds of the insurance of ▇▇▇▇▇▇ as set out in Section 10.6 may be utilized by ▇▇▇▇▇▇ for this indemnity. However, the indemnity is in no way limited by the availability or amount of such insurance. Stellar shall give ▇▇▇▇▇▇ prompt written notice of any such claim. ▇▇▇▇▇▇ shall be entitled to assume complete control of the defence of such claim. Stellar shall render such assistance to ▇▇▇▇▇▇ as may be reasonably requested by ▇▇▇▇▇▇ and ▇▇▇▇▇▇ shall reimburse Stellar for its reasonable out-of-pocket expenses incurred in rendering such assistance. For greater certainty, in no event shall ▇▇▇▇▇▇ have any liability (whether direct or indirect, in contract or tort or otherwise) to Stellar or any other person asserting claims on behalf of or in right of Stellar hereunder to the extent such liability has resulted from the negligence or willful misconduct of Stellar or its representatives.
10.2 Stellar shall defend, indemnify and hold harmless ▇▇▇▇▇▇ from and against all losses (other than loss of profits), damages (other than indirect, special, consequential and punitive damages), liabilities and expenses (including reasonable attorneys' fees) for (i) personal injury or damage arising out of the use of the Products, provided the claim for such loss, liability and expense is based upon product liability in respect of the Product or the willful misconduct or negligence of Stellar, its Affiliates or Approved Manufacturer or (ii) any suit or proceeding brought against ▇▇▇▇▇▇ insofar as such suit or proceeding is based on a claim that the Methods and Technical Know-How and Improvements to any Products constitutes an infringement of any patent, copyright, trade secret or other intellectual property right of any person other than Stellar. To the extent that it is available, the proceeds of the insurance of Stellar as set out in Section 10.6 may be utilized by Stellar for this indemnity. However, notwithstanding the foregoing, the indemnity is in no way limited by the availability or amount of any such insurance. ▇▇▇▇▇▇ shall give Stellar prompt written notice of any such claim. Stellar shall be entitled to assume complete control of the defence of such claim. ▇▇▇▇▇▇ shall render such assistance to Stellar as may be reasonably requested by Stellar and Stellar shall reimburse ▇▇▇▇▇▇ for its reasonable out-of-pocket expenses incurred in rendering such assistance. For greater certainty, in no event shall Stellar have any liability (whether direct or indirect, in contract or tort or otherwise) to ▇▇▇▇▇▇ or any other person asserting claims on behalf of or in right of ▇▇▇▇▇▇ hereunder to the extent such liability has resulted from the negligence or willful misconduct of ▇▇▇▇▇▇, its Affiliates, sublicensees or representatives.
(a) Each party indemnified under the provisions of this Supply Agreement (the “Indemnified Party”), upon receipt of written notice of any claim, or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Supply Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof to the party from whom indemnity shall be sought hereunder (the “Indemnifying Party”); provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the Indemnifying Party of any of its obligations hereunder except to the extent the Indemnifying Party is prejudiced by such failure. The Indemnifying Party shall be entitled at its own expense to participate in the defence of such claim or action, or, if it shall elect, to assume such defence, in which event such defence shall be conducted by counsel chosen by such Indemnifying Party, which counsel may be any counsel reasonably satisfactory to the Indemnified Party against whom such claim is asserted or who shall be the defendant in such action, and such Indemnified Party shall bear all fees and expenses of any nature (including attorneys’ additional counsel retained by it. If the Indemnifying Party shall elect not to assume the defence of such claim or action, such Indemnifying Party shall reimburse such Indemnified Party for the reasonable fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance expenses of any act concerning one counsel retained by it. Neither party shall be responsible to or bound by any settlement made by the activities of the Companyother party without its prior written consent, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to which shall not be in, unreasonably withheld or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreementdelayed.
(b) In Notwithstanding Section 10.3(a), if the sole discretion named Parties in such action (including impeded Parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by counsel that, consistent with applicable standards of professional responsibility, there may be a conflict between the positions of the Managing MemberIndemnifying Party and the Indemnified Party in conducting the defence of such action or that there are legal defences available to such Indemnified Party different from or in addition to those available to the Indemnifying Party, expenses incurred then the Indemnified Party shall be entitled to retain one separate counsel to conduct its defence to the extent reasonably determined by an Indemnitee in defending such counsel to be necessary to protect the interests of the Indemnified Party, at the expense of the Indemnifying Party.
10.4 IN NO EVENT SHALL EITHER PARTY HERETO BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES OF ANY KIND (WHETHER ARISING UNDER CONTRACT, TORT, OR OTHERWISE) INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE FOR ANY PUNITIVE OR EXEMPLARY DAMAGES.
10.5 The amount of any claimloss, demandliability, action, suit, damage or proceeding subject to expense for which indemnification is provided under this Section 4.5 may 10 shall be advanced net of any amounts actually recovered by the Company prior indemnified Party in respect of such loss, liability, damage or expense under its insurance policies.
10.6 Each Party, at its own cost, shall maintain comprehensive general liability insurance, including product liability insurance against claims related to the final disposition manufacture and commercialization of the Product in connection with this Agreement. Such insurance shall be in amounts of not less than $5,000,000 USD for each claim and $10,000,000 USD in the aggregate for ▇▇▇▇▇▇, and in the amount of not less than $2,000,000 CDN in the aggregate for Stellar, both during the Term and thereafter for a period of five (5) years. In addition, Stellar shall ensure that its Approved Manufacturers of the Product shall maintain product liability insurance against claims related to the manufacture of the Product in an amount of not less than $10,000,000 CDN. The amount of such claim, demand, action, suit, or proceeding upon receipt by insurance shall in no way limit the Company indemnification obligations of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized either Party set out in this Section 4.510. Each Party shall provide the other Party with at least sixty (60) days prior written notice of any cancellation or any termination of its insurance. Copies of all policies or certificates of insurance and any renewals thereof, shall be delivered promptly by both Parties to the other Party throughout the term of this License Agreement and any renewal thereof and for a period of five (5) years thereafter. Stellar shall ensure that its Approved Manufacturer is compliant with this Section 10.6. ▇▇▇▇▇▇ shall, at its option, require Stellar to increase its policy limits. If the parties deem that it is necessary to increase Stellar's insurance coverage from the level required in this Section 10.6, ▇▇▇▇▇▇ will pay for the costs associated with any such increase including, without limitation, the increase in premiums associated therewith. Furthermore, the parties hereby agree to negotiate in good faith the terms of such reimbursement prior to Stellar being required to obtain any such increase in such insurance coverage. Each Party shall provide the other Party with at least sixty (60) days prior written notice of any cancellation or any termination of its insurance. Copies of all policies or certificates of insurance and any renewals thereof, shall be delivered promptly by both Parties to the other Party throughout the term of this License Agreement and any renewal thereof and for a period of five (5) years thereafter.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) 10.7 The provisions terms of this Section 4.5 are for 10 shall survive the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable to the Company termination or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification expiration of this Section 4.5 by the Members shall not adversely affect any rights Supply Agreement for a period of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modificationsix (6) years.
Appears in 1 contract
Indemnification and Liability. (a) 6.6.1. The Company shall defend, indemnify and hold harmless the each current or and former Members, Managing Member, Tax Matters PartnerManager, Directors, and Officer of the Company and any officers, executives (whether or not employees) and their respective Affiliatesmembers, agentsdirectors, officers, executives (whether or not employees), partnersshareholders, employees, representatives, directors, members, managers and shareholders partners or agents of any of the foregoing (individuallyeach, an “Indemnitee”) to the full fullest extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (liabilities, joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, settlements and other amounts of any nature whatsoever, known or unknown, liquid or illiquid (collectively, “Liabilities”) arising from any and all claims, demands, actions, suits, suits or proceedings, whether civil, criminal, administrativeadministrative or investigative (collectively, or investigative“Actions”), in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct (a) either (i) was the Indemnitee determined in good faith, within the scope faith that its course of such Indemnitee’s authority and in a manner it reasonably believed to be conduct was in, or not contrary opposed to, the best interests of the Company and or (ii) in the case of inaction, the Indemnitee did not intend its inaction to be harmful or opposed to the best interests of the Company, and (b) the Indemnitee’s conduct did not constitute fraud, gross negligence or willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, suit or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, Indemnitee acted in a knowing violation of law, a material breach of this Agreement.
manner contrary to that specified in clauses (a) or (b) In the sole discretion of the Managing Member, expenses above.
6.6.2. Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding Action subject to this Section 4.5 may 6.6 shall, with the approval of the Management Committee in its discretion, be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding Action upon receipt by the Company of a written commitment (satisfactory to the Management Committee) by or on behalf of the Indemnitee to repay such amount if it shall be finally determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.56.6.
(c) 6.6.3. Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, assets of the Company as an expense of the Company. No Company and no Member shall be subject to personal liability by reason of these indemnification provisions. Notwithstanding anything to the contrary contained in this Agreement, no Member shall be required to make any Capital Contribution to the Company in respect of the Company’s indemnification obligations.
(d) 6.6.4. The provisions of this Section 4.5 are for the benefit of the Indemnitees only and shall not be deemed to create any rights for the benefit of any other Person. In no event shall any Indemnitee be entitled to double recovery for any liability indemnified by the Company pursuant to this Section 6.6.
(e) 6.6.5. The indemnification provided by this Section 6.6 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law or equity or otherwise, and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
6.6.6. No Indemnitee shall be liable denied indemnification in whole or in part under this Section 6.4 by reason of the fact that the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
6.6.7. The Management Committee, on behalf of the Company, may cause the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if purchase and maintain insurance, at the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests expense of the Company and (ii) did to the extent available, for the protection of Indemnitees against any liability incurred by such Persons in any such capacity or arising out of any such Person’s status as such, whether or not constitute fraud, gross negligence, willful misconduct, or a knowing violation of lawthe Company has the power to indemnify such Persons against such liability.
(f) Any repeal or modification 6.6.8. If any Indemnitee believes that it has a claim for indemnification under this Section 6.6, such Indemnitee shall so notify the Company promptly in writing describing such claim, the amount thereof, if known, and the method of computation of such claim, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such claim shall have arisen.
6.6.9. Notwithstanding anything to the contrary in this Section 4.5 6.6, unless otherwise determined by the Members shall Management Committee in its discretion or as would otherwise apply if the Company were a Wyoming corporation, this Section 6.6 does not adversely affect apply to any action, suit or proceeding by the Company against any Member, Manager or Officer, including any action, suit or proceeding to enforce any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal under any employment or modification with respect to any acts or omissions occurring prior to such repeal or modificationsimilar agreement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Granite Peak Resources, LLC)
Indemnification and Liability. (a) The Company Tenant shall defendindemnify, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law defend Landlord from and against any and all costs, expenses (including reasonable counsel fees), liabilities, losses, claims, demands, costs, damages, liabilities (joint and several)suits, expenses of any nature (including attorneys’ fees and disbursements), judgmentsactions, fines, settlementspenalties, claims or demands of any kind and asserted by or on behalf of any person or governmental authority, arising out of or in anyway connected with, and other amounts arising from any and all claimsLandlord shall not be liable to Tenant on account of, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct (i) was in good faithany failure by Tenant to perform any of the agreements, within the scope terms, covenants or conditions of such Indemnitee’s authority and in a manner it reasonably believed this Lease required to be inperformed by Tenant, or not contrary to, the best interests of the Company and (ii) did not constitute fraudany failure by Tenant to comply with any statutes, willful misconductordinances, bad faith, gross negligence, a knowing violation regulations or orders of law or a material breach of this Agreement. The termination of an action, suitany governmental authority, or proceeding by judgment(iii) any accident, order, settlementdeath, or upon a plea personal injury, or damage to or loss or theft of nolo contendere property, which shall occur in or about the Premises except as the same may be caused solely by the negligence of Landlord, its equivalent, shall not, in and of itself, create a presumption employees or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreementagents.
(b) In During the sole discretion term of this Lease or any renewal thereof, Tenant shall obtain and promptly pay all premiums for general public liability insurance against claims for personal injury, death or property damage occurring upon, in or about the demised Premises, with minimum limits of $500,000.00 on account of bodily injuries to or death of one person and $1,000,000.00 on account of bodily injuries to or death of more than one person as a result of anyone accident or disaster, and $100,000.00 on account of damage to property (or in an amount of not less than $1,000,000.00 combined single limit for bodily injury and property damage), and all such policies and renewals thereof shall name the Landlord and the Tenant as insureds. All policies of insurance shall provide (i) that no material change or cancellation of said policies shall be made without thirty (30) days prior written notice to Landlord and Tenant, (ii) that any loss shall be payable notwithstanding any act or negligence of the Managing MemberTenant or the Landlord which might otherwise result in the forfeiture of said insurance, expenses incurred by an Indemnitee in defending any claimand (iii) that the insurance company issuing the same shall not have right of subrogation against the Landlord. On or before the commencement date of the term of this Lease, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company and thereafter not less than fifteen (15) days prior to the final disposition expiration dates of such claimsaid policy or policies, demand, action, suit, Tenant shall provide copies of policies or proceeding upon receipt certificates of insurance evidencing coverages required by this Lease. All the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it insurance required under this Lease shall be determined that such Indemnitee is not entitled issued by insurance companies, authorized to do business in the State of Pennsylvania with a financial rating of at least an A+ as rated in the most recent edition of Best's Insurance Reports and in business for the past five years. The aforesaid insurance limits may be indemnified as authorized in this Section 4.5reasonably increased from time to time by Landlord.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assetsTenant and Landlord, as an expense of the Company. No Member shall be subject to personal respectively, hereby release each other from any and all liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable or responsibility to the Company other for all claims or to a Member anyone claiming by, through or under it or them by way of subrogation or otherwise for any losses sustained loss or liabilities incurred as a result damage to property covered by Pennsylvania Standard Form of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faithFire Insurance Policy with extended coverage endorsement, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, whether or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 such insurance is maintained by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modificationother party.
Appears in 1 contract
Sources: Real Property Lease Agreement (World Health Alternatives Inc)
Indemnification and Liability. (a) 19.1 The Company CITY shall defendprotect, save harmless, indemnify and hold harmless defend, at its own expense, the current or former MembersCOUNTY, Managing Member, Tax Matters Partner, Directorsits elected and appointed officials, officers, executives (whether employees and agents, from any loss or not claim for damages of any nature whatsoever arising out of the CITY's performance of this AGREEMENT, including claims by the CITY’s employees or third parties, except for those damages caused solely by the negligence or willful misconduct of the COUNTY, its elected and appointed officials, officers, employees) , or agents.
19.2 The COUNTY shall protect, save harmless, indemnify, and their respective Affiliatesdefend at its own expense, the CITY, its elected and appointed officials, officers, employees and agents from any loss or claim for damages of any nature whatsoever arising out of the COUNTY's performance of this AGREEMENT, including claims by the COUNTY’s employees or third parties, except for those damages caused solely by the negligence or willful misconduct of the COUNTY, its elected and appointed officials, officers, employees, or agents.
19.3 In the event of liability for damages of any nature whatsoever arising out of the performance of this AGREEMENT by the CITY and the COUNTY, including claims by the CITY’s or the COUNTY’s own officers, officials, employees, agents, volunteers, or third parties, caused by or resulting from the concurrent negligence of the COUNTY and the CITY, their officers, executives (whether or not employees)officials, partnersemployees and volunteers, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) each party’s liability hereunder shall only be to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may that party’s negligence.
19.4 No liability shall be involved, or threatened to be involved as a party or otherwise, relating attached to the performance CITY or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability COUNTY by reason of these indemnification provisions.
(d) entering into this AGREEMENT except as expressly provided herein. The provisions of this Section 4.5 are for CITY shall hold the benefit of the Indemnitees COUNTY harmless and shall not be deemed to create defend at its expense any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable legal challenges to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the IndemniteeCITY’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 requested mitigation and/or failure by the Members shall not adversely affect any rights of such Indemnitee pursuant CITY to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification comply with respect to any acts or omissions occurring prior to such repeal or modification.chapter 82.02
Appears in 1 contract
Sources: Interlocal Agreement
Indemnification and Liability. (a) 6.6.1 The Company shall defend, indemnify and hold harmless each member of the current or former Members, Managing Member, Tax Matters Partner, Directors, Board and all officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers agents and shareholders Affiliates of the Company (individually, an “"Indemnitee”") to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (liabilities, joint and several), expenses of any nature (including reasonable attorneys’ ' fees and disbursements), judgments, fines, settlements, settlements and other amounts arising from any and all claims, demands, actions, suits, suits or proceedings, civil, criminal, administrative, administrative or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if (a) the Indemnitee’s conduct (i) was Indemnitee acted in good faith, within the scope of such Indemnitee’s authority faith and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and Company, (iib) the Indemnitee's conduct did not constitute fraud, gross negligence or willful misconduct, bad faith, gross negligence, misconduct and (c) the Indemnitee's conduct is not based upon or attributable to the receipt by the Indemnitee of a knowing violation of law or a material breach of this Agreementpersonal benefit to which the Indemnitee is not entitled. The termination of an action, suit, suit or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, Indemnitee acted in a knowing violation of law, a material breach of this Agreement.
manner contrary to that specified in clauses (a) or (b) In the sole discretion of the Managing Member, expenses above.
6.6.2 Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, suit or proceeding subject to this Section 4.5 may Paragraph 6.6 shall be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5Paragraph 6.6.
(c) 6.6.3 Any indemnification provided hereunder shall be satisfied solely out of the assets of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) 6.6.4 The provisions of this Section 4.5 Paragraph 6.6 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee 6.6.5 Neither the Board nor the officers of the Company shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of the Board or any such Indemnitee officer if (a) the Indemnitee’s conduct (i) act or failure to act of the Board or such officer was in good faith, within the scope of such Indemnitee’s authority, faith and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and Company, (iib) the conduct of the Board or such officer did not constitute fraudgross negligence or willful misconduct and (c) the Indemnitee's conduct is not based upon or attributable to the receipt by the Indemnitee of a personal benefit to which the Indemnitee is not entitled.
6.6.6 To the extent that any Director or any officer of the Company (each, gross negligencea "Responsible Party") has, willful misconductat law or in equity, duties (including, without limitation, fiduciary duties) to the Company or any Member or other Person bound by the terms of this Agreement, such Responsible Parties shall not be liable to the Company, any Member, or any such other Person for its good faith reliance on the provisions of this Agreement so long as such Responsible Parties act in accordance with this Agreement and exercise such standard of care applicable to a knowing violation director or any officer, as applicable, of a corporation incorporated in the State of Delaware. The provisions of this Agreement, to the extent, if any, that they restrict the duties of a Responsible Party otherwise existing at law or in equity, are agreed by all parties hereto to replace such other duties to the greatest extent permitted under applicable law.
6.6.7 Whenever a Responsible Party is required or permitted to make a decision, take or approve an action, or omit to do any of the foregoing (fa) Any repeal in its discretion, (b) under a similar grant of authority or modification latitude or (c) without an express standard of this Section 4.5 by the Members behavior (including, without limitation, standards such as "reasonable" or "good faith"), then such Responsible Party shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and be subject to the advancement standard of expenses care applicable to a director or any officer, as applicable, of an Indemnitee existing at a corporation incorporated in the time State of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modificationDelaware.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Zany Brainy Inc)
Indemnification and Liability. (a) The Company shall Adviser and the Sub-Adviser each agree to indemnify, defend, indemnify and hold harmless the current or former Membersother and its affiliates, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees)directors, partners, employeesmanagers, representatives, directors, members, managers employees and shareholders (individually, an “Indemnitee”) to the full extent permitted by law authorized agents from and against any and all losses, claims, demands, costs, damages, liabilities (joint liabilities, losses, costs and several)expenses, expenses of any nature (including reasonable attorneys’ fees and disbursementscosts (“Losses”), judgmentsthat such party and its affiliates and their respective officers, finesdirectors, settlementspartners, employees and other amounts arising from any and all claimsauthorized agents may suffer, demandswhich arise out of, actionsresult from, suitsare based upon, or proceedings, civil, criminal, administrativerelate to (a) any untrue statement of a material fact contained in the Prospectus or any Marketing Materials or the omission or alleged omission from the Prospectus or any Marketing Materials of a material fact required to be stated therein or necessary to make the statements therein not misleading, or investigative(b) the parties’ performance of services under this Agreement and which are caused by the breach of any representation or warranty made hereunder by such party, provided, however, that no indemnity shall be provided under this Section 11(a) in which respect of any Losses attributed to (x) any untrue statement of a material fact contained in the Indemnitee may Prospectus or any Marketing Materials or the omission or alleged omission from the Prospectus or any Marketing Materials of a material fact required to be involvedstated therein or necessary to make the statements therein not misleading that is made or otherwise contributed to in material part by the purported indemnified party, or threatened (y) said indemnified party’s performance of services under this Agreement, where said untrue statement, material omission or failure to be involved as a party or otherwise, relating to properly perform services was the performance or nonperformance of any act concerning the activities result of the Company, if the Indemniteeindemnified party’s conduct (i) was in good faith, within the scope gross negligence or reckless disregard of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of its duties under this Agreement. The Agreement This Section shall survive any termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In Sub-Adviser will not have breached any obligation to the sole discretion Trust or the Adviser and will incur no liability from losses in any way related to: (i) the actions of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suitTrust or the Adviser; (ii) following the directions of the Trust or Adviser, or proceeding subject Sub-Adviser’s failure to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, follow unlawful or proceeding upon receipt by the Company of a written commitment by or on behalf unreasonable directions of the Indemnitee Trust or the Adviser; (iii) any act or omission of the Custodian or other agent of the Trust or Adviser except any omission undertaken or omitted pursuant to repay such amount if it shall be determined that such Indemnitee is and in accordance with the instructions of the Sub-Adviser; or (iv) force majeure or other events beyond the control of Sub-Adviser, including, without limitation, any failure, default or delay in performance resulting from computer failure or breakdown in communications not entitled to be indemnified as authorized in this Section 4.5reasonably within the control of Sub-Adviser.
(c) Any indemnification provided hereunder For the avoidance of doubt, in fulfilling their respective duties hereunder, the Adviser and Sub-Adviser shall be satisfied solely out entitled to receive and act upon the advice of counsel to the Company’s assetsTrust , or such counsel as an expense of the Company. No Member Adviser and the Sub-Adviser may agree upon, with respect to all matters hereunder, and the Adviser and Sub-Adviser shall be subject without liability for any action reasonably taken or omitted pursuant to personal liability by reason of these indemnification provisionssuch advice.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any Certain federal or state securities or other Person.
(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or laws may impose liabilities incurred as a result of any under certain circumstances on persons who otherwise act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within and nothing in this Agreement constitutes a waiver or limitation of any rights that the scope of Trust or Adviser may have under any such Indemnitee’s authority, and in a manner it reasonably believed applicable federal or state laws whose applicability is not permitted to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of lawcontractually waived.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 1 contract
Sources: Investment Sub Advisory Agreement (Pacer Funds Trust)
Indemnification and Liability. (a) 19.1 The Company CITY shall defendprotect, save harmless, indemnify and hold harmless defend, at its own expense, the current or former MembersCOUNTY, Managing Member, Tax Matters Partner, Directorsits elected and appointed officials, officers, executives (whether employees and agents, from any loss or not claim for damages of any nature whatsoever arising out of the CITY's performance of this AGREEMENT, including claims by the CITY’s employees or third parties, except for those damages caused solely by the negligence or willful misconduct of the COUNTY, its elected and appointed officials, officers, employees) , or agents.
19.2 The COUNTY shall protect, save harmless, indemnify, and their respective Affiliatesdefend at its own expense, the CITY, its elected and appointed officials, officers, employees and agents from any loss or claim for damages of any nature whatsoever arising out of the COUNTY's performance of this AGREEMENT, including claims by the COUNTY’s employees or third parties, except for those damages caused solely by the negligence or willful misconduct of the COUNTY, its elected and appointed officials, officers, employees, or agents.
19.3 In the event of liability for damages of any nature whatsoever arising out of the performance of this AGREEMENT by the CITY and the COUNTY, including claims by the CITY’s or the COUNTY’s own officers, officials, employees, agents, volunteers, or third parties, caused by or resulting from the concurrent negligence of the COUNTY and the CITY, their officers, executives (whether or not employees)officials, partnersemployees and volunteers, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemniteeeach party’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.
(c) Any indemnification provided liability hereunder shall be satisfied solely out only to the extent of the Companythat party’s assets, as an expense of the Company. negligence.
19.4 No Member liability shall be subject attached to personal liability the CITY or the COUNTY by reason of these indemnification provisions.
(d) entering into this AGREEMENT except as expressly provided herein. The provisions of this Section 4.5 are for CITY shall hold the benefit of the Indemnitees COUNTY harmless and shall not be deemed to create defend at its expense any rights for the benefit of any other Person.
(e) No Indemnitee shall be liable legal challenges to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the IndemniteeCITY’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.
(f) Any repeal or modification of this Section 4.5 requested mitigation and/or failure by the Members shall not adversely affect any rights of such Indemnitee pursuant CITY to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification comply with respect to any acts or omissions occurring prior to such repeal or modification.chapter 82.02
Appears in 1 contract
Sources: Interlocal Agreement
Indemnification and Liability. 6.1 Each Party (athe "Indemnifying Party") The Company shall defendbe liable towards, and compensate, indemnify and hold harmless the current other Party (or former Members, Managing Member, Tax Matters Partner, Directorsits directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives affiliated companies and subcontractors) (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”the "Indemnified Party") to the full extent permitted by law from harmless for and against any and all lossesdirect damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, demands, costs, damages, liabilities (joint and several), expenses claims of any nature kind, interest, penalties, legal proceedings and expenses (including including, without limitation, reasonable attorneys’ fees and disbursements)expenses) actually paid, judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, suffered or proceedings, civil, criminal, administrative, or investigative, in which incurred by the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct Indemnified Party pursuant to:
(i) was in good faitha breach of this Agreement by the Indemnifying Party, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and or
(ii) did any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Indemnifying Party.
6.2 The Accommodation shall fully indemnify, compensate and hold ▇▇▇▇▇▇▇.▇▇▇ (or its directors, officers, employees, agents, affiliated companies and subcontractors) harmless for and against any liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses), damages, losses, obligations, claims of any kind, interest, penalties and legal proceedings paid, suffered or incurred by ▇▇▇▇▇▇▇.▇▇▇ (or its directors, officers, agents, affiliated companies and subcontractors) in connection with:
(i) all claims made by Guests concerning inaccurate, erroneous or misleading information of the Accommodation on the Platforms;
(ii) all claims made by Guests concerning or related to a stay in the Accommodation, overbooking or (partly) cancelled or wrong reservations or repayment, refund or charge back of the Room Price;
(iii) to the extent that any claims under or pursuant to the Best Price Guarantee for a rate in which respect ▇▇▇▇▇▇▇.▇▇▇ is entitled to Rate and Conditions Parity are not constitute settled between the Guest and the Accommodation upon check out of the Guest (by payment of the lower rate), all claims made by Guests regarding or pursuant to the Best Price Guarantee;
(iv) all other claims from Guests which are wholly or partly attributable to or for the risk and account of the Accommodation (including its directors, employees, agents, representatives and the premises of the Accommodation) (including claims related to (lack of) services provided or product offered by the Accommodation) or which arise due to tort, fraud, willful wilful misconduct, bad faithnegligence or breach of contract (including the Guest Reservation) by or attributable to the Accommodation (including its directors, employees, agents, representatives and the premises of the Accommodation) in respect of a Guest or its property; and
(v) all claims against ▇▇▇▇▇▇▇.▇▇▇ in relation to or as a result of the failure of the Accommodation to (a) properly register with relevant tax authorities, or (b) pay, collect, remit or withhold any applicable Taxes, fees and (sur)charges levied or based on the services or other charges hereunder in the relevant jurisdiction (including room price and commission payments).
6.3 Save as otherwise provided for in this Agreement, the maximum liability of one Party to any other party in aggregate for all claims made against such party under or in connection with this Agreement in a year shall not exceed the aggregate commission received or paid by such Party in the preceding year or EUR 100,000 (whichever is higher), unless in the event of tort, fraud, wilful misconduct, gross negligence, a knowing violation deliberate non-disclosure or deliberate deception on the part of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall notthe liable Party (i.e. the Indemnifying Party), in which event the limitation of liability is not applicable for such liable party. Parties agree and acknowledge that none of itself, create a presumption the limitations of liability set out in Clause 6 shall apply to any of the indemnifications in respect of third party claims (e.g. claims from Guests as described in 6.2) or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreementthird party liabilities.
(b) 6.4 In the sole discretion event of the Managing Member, expenses incurred by an Indemnitee in defending any a third party claim, demandParties shall act in good faith and use their commercially reasonable efforts to consult, action, suit, or proceeding subject to this Section 4.5 may be advanced by cooperate and assist each other in the Company prior to the final disposition defense and/or settlement of such claim, demandwhereas the indemnifying Party shall be entitled to take over a claim and assume the defence (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), actionand neither Party shall make any admission, suitfile any papers, consent to the entry of any judgment or proceeding upon receipt by enter into any compromise or settlement without the Company of a prior written commitment by or on behalf consent of the Indemnitee to repay such amount if it other Party (which shall not unreasonably be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5withheld, delayed or conditioned).
(c) Any indemnification provided hereunder 6.5 In no event shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee shall Party be liable to the Company or to a Member any other Party for any losses sustained indirect, special, punitive, incidental or liabilities incurred as consequential damages or losses, including loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, whether such damages are (alleged as) a result of any act a breach of contract, tort or omission otherwise (even if advised of the possibility of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of damages or losses). All such Indemnitee’s authority, damages and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company losses are hereby expressly waived and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of lawdisclaimed.
(f) Any repeal or modification 6.6 Each Party acknowledges that remedies at law may be inadequate to protect the other Party against any breach of this Section 4.5 by the Members shall not adversely affect Agreement and without prejudice to any other rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and remedies otherwise available to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect other Party, each Party will be entitled to any acts or omissions occurring prior to such repeal or modificationinjunctive relief and specific performance.
Appears in 1 contract
Sources: Accommodation Agreement
Indemnification and Liability. (a) 6.6.1 The Company shall defend, indemnify and hold harmless each member of the current or former Members, Managing Member, Tax Matters Partner, Directors, Board and all officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers agents and shareholders Affiliates of the Company (individually, an “"Indemnitee”") to the full extent permitted by law from and ---------- against any and all losses, claims, demands, costs, damages, liabilities (liabilities, joint and several), expenses of any nature (including reasonable attorneys’ ' fees and disbursements), judgments, fines, settlements, settlements and other amounts arising from any and all claims, demands, actions, suits, suits or proceedings, civil, criminal, administrative, administrative or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if (a) the Indemnitee’s conduct (i) was Indemnitee acted in good faith, within the scope of such Indemnitee’s authority faith and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and Company, (iib) the Indemnitee's conduct did not constitute fraud, gross negligence or willful misconduct, bad faith, gross negligence, misconduct and (c) the Indemnitee's conduct is not based upon or attributable to the receipt by the Indemnitee of a knowing violation of law or a material breach of this Agreementpersonal benefit to which the Indemnitee is not entitled. The termination of an action, suit, suit or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, Indemnitee acted in a knowing violation of law, a material breach of this Agreement.
manner contrary to that specified in clauses (a) or (b) In the sole discretion of the Managing Member, expenses above.
6.6.2 Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, suit or proceeding subject to this Section 4.5 may Paragraph 6.6 shall be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5Paragraph 6.6.
(c) 6.6.3 Any indemnification provided hereunder shall be satisfied solely out of the assets of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) 6.6.4 The provisions of this Section 4.5 Paragraph 6.6 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.
(e) No Indemnitee 6.6.5 Neither the Board nor the officers of the Company shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of the Board or any such Indemnitee officer if (a) the Indemnitee’s conduct (i) act or failure to act of the Board or such officer was in good faith, within the scope of such Indemnitee’s authority, faith and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and Company, (iib) the conduct of the Board or such officer did not constitute fraudgross negligence or willful misconduct and (c) the Indemnitee's conduct is not based upon or attributable to the receipt by the Indemnitee of a personal benefit to which the Indemnitee is not entitled.
6.6.6 To the extent that any Director or any officer of the Company (each, gross negligencea "Responsible Party") has, willful misconductat law or in equity, duties (including, ----------------- without limitation, fiduciary duties) to the Company or any Member or other Person bound by the terms of this Agreement, such Responsible Parties shall not be liable to the Company, any Member, or any such other Person for its good faith reliance on the provisions of this Agreement so long as such Responsible Parties act in accordance with this Agreement and exercise such standard of care applicable to a knowing violation director or any officer, as applicable, of a corporation incorporated in the State of Delaware. The provisions of this Agreement, to the extent, if any, that they restrict the duties of a Responsible Party otherwise existing at law or in equity, are agreed by all parties hereto to replace such other duties to the greatest extent permitted under applicable law.
6.6.7 Whenever a Responsible Party is required or permitted to make a decision, take or approve an action, or omit to do any of the foregoing (fa) Any repeal in its discretion, (b) under a similar grant of authority or modification latitude or (c) without an express standard of this Section 4.5 by the Members behavior (including, without limitation, standards such as "reasonable" or "good faith"), then such Responsible Party shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and be subject to the advancement standard of expenses care applicable to a director or any officer, as applicable, of an Indemnitee existing at a corporation incorporated in the time State of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modificationDelaware.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Zany Brainy Inc)
Indemnification and Liability. (a) The Company shall Tenant agrees to exonerate, indemnify, defend, indemnify save and hold harmless the current Landlord (and any and all persons claiming by, through or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employeesunder ▇▇▇▇▇▇▇▇) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law from and against any and all losses, third party claims, demandsproceedings, defenses thereof, liabilities, costs, damages, liabilities (joint and several), expenses of any nature (kind and nature, including attorneys’ fees and disbursements)legal fees, judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct from: (i) was in good faith, within the scope any breach of such Indemnitee’s authority and in a manner it reasonably believed to be in, this Lease by Tenant or not contrary to, the best interests of the Company those for whom ▇▇▇▇▇▇ is responsible; and (ii) did not constitute fraudany injury, willful misconductloss or damage occurring on or emanating from the Premises, bad faithincluding, gross negligencewithout limitation, a knowing violation as the result of law any act, omission or a material breach negligence of the Tenant, or Tenant's contractors or licensees, or of the agents, servants, employees or business invitees of Tenant, or persons coming into the Premises for the purpose of visiting or dealing with any one or one or more of the foregoing, or arising from any accident, injury or damage occurring outside of the Premises, the parking areas and the approaches thereto, but, in, on or about the Building, which such accident, damage or injury results or is claimed to have resulted from the negligence or misconduct on the part of Tenant or Tenant's contractors or licensees, or of the agents, servants, employees or business invitees of Tenant, including, without limitation, related to or arising from vehicles and other forms of transportation of Tenant or those acting by, through or under Tenant at the Building or the approaches thereto; provided, however that none of the foregoing shall apply to Landlord's negligent acts and omissions, and in no event shall Tenant ever be liable under this Lease to Landlord for consequential, indirect or punitive damages of any kind. This exoneration, indemnification and hold harmless agreement shall survive the termination of this AgreementLease for matters which arise during the Term of this Lease or during any period of continued occupancy of the Premises by Tenant or parties for whom ▇▇▇▇▇▇ is responsible (as provided above) after the Term of this Lease. The termination Landlord and Tenant release each other from any claims and demands of an actionwhatever nature for damage, suitloss or injury to the Building or to the other’s property in, on or about the Premises, and the Building that are caused by or result from risks or perils insured against under any property insurance policies maintained by Landlord or Tenant, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.
(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced required by the Company prior Lease to the final disposition of such claim, demand, action, suit, or proceeding upon receipt be maintained. If required by the Company terms of a written commitment their respective insurance policy(ies), Landlord and Tenant shall cause their insurers to waive any right of recovery by way of subrogation against either Landlord or on behalf of Tenant in connection with any property damage covered by any such policies. Provided, however, the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.
(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.
(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and foregoing shall not be deemed construed to create any rights for the benefit of release or alter Tenant’s agreements and obligations required by any other Person.
(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result paragraph of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed this Lease to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of lawperformed and/or undertaken by Tenant.
(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 1 contract
Sources: Lease Agreement (Precision Optics Corporation, Inc.)