赔偿条款（Indemnification）

 

典型的条款

Indemnitor shall indemnify Indemnitee against any losses, liabilities, and claims arising out of or relating to [a particular event, litigation, or misrepresentation].

(尽管此类规定初看起来包含了优秀的赔偿条款所应具备的某些标记性词句，但细看之下，这一规定将赔偿方暴露于其所不希望承担的法律责任的重压之下，而受偿方也会处于未来损失不受保护的状态。)

 

赔偿方典型定义：

“Indemnitors” means the Licensor and its stockholders, Steven Smith and Roberta Jones.

 

“Indemnitors” means the Seller and ParentCo. And their respective successors and assignes.

 

赔偿方代表的任命（在有多个赔偿主体的情况下，赔偿方可能会任命一名代表来表达它们的集体利益）

The Indemnitor Representative.

(a) Appointment of the Indemnitor Representative. Each Indemnitor constitute and appoints the Indemnitor Representative as that Indemnitor’s true lawful attorney-in-fact to act for and on behalf of that Indemnitor in all matters arising out of or relating to this Article and the liability or asserted liability of that Indemnitor under this Article, including, without limitation,

(i) accepting and agreeing to the liability of that Indemnitor with respect to any Claim or Third Party Claim;

(ii) objecting to any Claim or Third Party Claim;

(iii) disputing the liability of that Indemnitor or the amount of the liability with respect to any Claim or Third Party Claim;

(iv) defending, compromising and settling the liability of that Indemnitor with respect to any Claim or Third Party Claim;

(v) accepting, or refusing to accept, the compromise and settlement of any Claim or Third Party Claim on behalf of that Indemnitor;

(vi) instituting and prosecuting those actions (including arbitration proceedings) as the Indemnitor Representative deems appropriate in connection with any of the previous clauses; and

(vii) retaining counsel, accountants, appraisers, and other advisors in connection with any of the previous clauses, all for the account of the Indemnitors.

Each Indemnitor agrees to be fully bound by the acts, decisions and agreements of the Indemnitor Representative taken and done pursuant to the authority granted in this subsection(a).

(b) Indemnification of the Indemnitor Representative. Each Indemnitor shall indemnify and defend the Indemnitor Representative against any liability that it incurs arising out of or relating to its act or omission pursuant to the authority granted to it in subsection(a), except for an act or omission that constitutes gross negligence or willful misconduct.

 

受偿方

（受偿方希望将所有可能对赔偿标的的事项负有责任的任何其他个人、组织）

“Affiliate” means, with respect to any person or entity, each stockholder, subsidiary, officer, director, agent, and employee of that person or entity. “Indemnitee” means the Licensee and each Affiliate of the Licensee.

 

第三方受益人

（在赔偿方赔偿受偿方之关联方的情形下，该等关联方即为第三方受益人。）

Third Party Beneficiaries. The Affiliates of Buyer are third party beneficiaries of this Agreement in accordance with its terms. Any modification of this Agreement executed by the signatories is binding upon these Affiliates, and any action taken or consent given by Buyer on its own behalf is binding upon the Affiliates for the purposes of this Agreement. This Agreement is not intended to, nor may it be deemed to, create any rights of enforcement in any person who is neither a signatory to this Agreement nor an Affiliate of Buyer.

 

赔偿承诺

赔偿方有义务为受偿方抗辩：

The Indemnitor shall indemnify and defend the Indemnitee against …

受到赔偿保护的事项应当包括“所有专业人士收费及费用，包括合理的律师费和开销

all professionals’ fees and expenses, including reasonable attorneys’ fees and disbursements.

 

Contractor

(a) Assume all risks of

(i) injury to property or persons used or employed on or in connection with the work; and

(ii) damage or injury to any persons or property wherever located, resulting from any action or operation under the contract;

And

(b) Shall defend the Owner against all claims on account of any such damage or injury.

 

连带责任

Jointly Severally. All of the Indemnitors’ promises in this Article are joint and several.

 

Contribution

(a)    Agreement to Contribute. To provide for just and equitable contribution, each Indemnitor shall contribute to the Indemnifiable Losses on the basis of the relative fault of each Indemnitor as set forth in subsection(b); except that an Indemnitor is in no event required to contribute to all Indemitees an aggregate amount in excess of of the Indemifiable Losses incurred by all Indemnitees.

(b)    Determination of Relative Fault. The relative fault of each Indemnitor is to be determined by reference to, among other things.

(i)     whether the misrepresentations, or alleged misrepresentations, or the breach of, or alleged breach of, any warranties, covenants or other agreements contained in this Agreement relate to information supplied by, or was within the control of, a special Indemnitor; and

(ii)   each Indemnitor’s relative intent, knowledge, access to information and opportunity to correct or prevent the breach.

 

赔偿范围

“Loss” means any liability, loss, claim, settlement payment, cost and expense, interest, award, judgment, damages (including punitive damages), diminution in value, fines, fees and penalties or other charge, other than a Litigation Expense.

 

【条款范例】

INDEMNIFICATION

Definitions (to be included with the other definitions in the agreement):

“Affilitae” means, with respect to any person or entity, each stockholder, subsidiary, officer, director, agent and employee of that person or entity.

“关联方”，就任何个人或组织而言，是指该个人或组织的每一股东，子公司，高级员工，董事，代理及雇员。

“Claim” has the meaning assigned in Section X.09(a).

“索赔”一词具有第X.09(a) 项中所赋予的意义。

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

“应赔偿损失”是指累计损失及诉讼费用。

“Indemnitee” means any person who makes a claim for indemnification under this Article, and each Affiliate of the Indemnitee.

“受偿方”是指向“赔偿方”提出本条项下赔偿的任何人及其“关联方”。

“Indemnitor” means any person against whom an Indemnitee makes a claim for indemnification under this Article.

“赔偿方”是指“受偿方”对之提出本条项下赔偿的任何人。

“Litigation Expense” means any court filing fee, court cost, arbitration fee or cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification under this Article, including, without limitation, in each case, attorneys’ fees, other professionals’ fees, and disbursements.

“诉讼费”是指任何立案费、庭审成本、仲裁费或仲裁成本、证人费以及为调查、抗辩或提出本条项下的某项赔偿请求而支出的每一其他费用和成本，包括但不限于为每一案件支出的律师费，聘请其他专业人士的费用和支出。

“Loss” means any liability, loss, claim, settlement payment, cost and expense, interest, award, judgment, damages (including punitive damages), diminution in value, fines, fees and penalties or other charge, other than a Litigation Expense.

 

“Third Party Claim” has the meaning assigned in Section X.10(a).

Section X.01. Indeminification of Buyer. Subject to the limitations set forth in Section X.03 [Survival of Representations and Warranties], Section X.05 [Basket], Section X.06 [Limitation of Indemnity Obligation], and Section X.07[Taxes], Seller and ParentCo. shall indemnify Buyer against all Indemnifiable Losses arising out of or relating to any one more of the following:

X．01 买方享有的赔偿。在不违反第X.03款【声明与保证的继续效力】，第X.05款【赔偿义务限制】，及第X.07【效力】之规定的前提下，“卖方”及其“母公司”应当同赔偿买方因下列一项或多项原因而起或与之相关的“应赔偿损失”：

(a)    Any [material] misrepresentation or breach of warranty by Seller of any representation or warranty set forth in this Agreement [or any Closing Document that Seller delivered].

“卖方”对本协议【或者卖方提供的任何“交割文件”】中规定的任何声明所作的【重大】不实陈述或者对本协议【或者卖方提供的任何“交割文件”】中规定的任何保证的严重违反。

(b)    Any [material] breach by Seller of any covenant or other agreement set forth in this Agreement [or any Closing Document that Seller delivered].

“卖方”【严重】违反“本协议”（或“卖方”交付的任何“交割文件”）中规定的承诺或各方达成的一致。

(c)    Seller’s failure to pay or discharge any Retained Liabilities.

“卖方”未能清偿任何“保留责任”。

(d)    The claim referred to in Item         of Section        of Seller’s Disclosure Schedule pertaining to the action to hold Seller responsible for the [insert the disclosed liability against which Seller will indemnify Buyer].

“卖方披露时间表”第    条第    项中提及的索赔，该索赔与要求“卖方”对【填入“卖方”将就之向“买方”提供赔偿的已披露责任】承担责任的诉讼相关。

Section X.02. Indemnification of Seller. Subject to the limitation set forth in [the Sections, if any, setting forth the contractual statute of limitations, the basket, and cap with respect to indemnification of Seller], Buyer shall indemnify Seller and ParentCo. against all Indemnifiable Losses arising out of or relating to any one or more of the following:

X．02.卖方享有的赔偿 在不违反【就“卖方”享有的赔偿规定的合同相关法定时效、起赔偿点及赔偿限额条款（如果有）】所设限制的前提下，“买方”应当赔偿“卖方”及其“母公司”因下列一项或多项原因而起或与之相关的“应赔偿损失”：

(a)    Any [material] misrepresentation or breach of warranty by Buyer of any representation or warranty set forth in this Agreement [or any Closing Document that Buyer delivered].

“买方”对本协议【或者卖方提供的任何“交割文件”】中规定的任何声明所作的【重大】不实陈述或者对本协议【或者买方提供的任何“交割文件”】中规定的任何保证的严重违反。

(b)    Any [material] breach by Buyer of any covenant or other agreement set forth in this Agreement [or any Closing Document that Buyer delivered].

“买方”【严重】违反“本协议”（或“买方”交付的任何“交割文件”）中规定的承诺或各方达成的一致。

(c)    Buyer’s failure to pay or discharge any Assumed Liabilities.

“买方”未能清偿任何“保留责任”。

Section X.03. Survival of Representations and Warranties. Except as otherwise provided, the representations and warranties contained in Article [insert the number of the Article containing Seller’s representations and warranties] survive the Closing Date to and including the day immediately preceding the second anniversary of the Closing Date; except that

X.03 声明与保证的继续效力  除本协议另有规定外，第【填入包含卖方声明与保证的条款编号】条中的声明与保证于“交割日”之时起直至其后届满两年的前一日（含）期间继续有效，但是：

(a)    the representations and warranties contained in Section [insert the number of the Section that sets forth the representation and warranty concerning taxes] survive the Closing Date to and including the 60^th day after the expiration of the applicable statutes of limitation for the assessment of Taxes;

第【填入规定税收相关声明与保证的条款之编号】条中的声明与保证于“交割日”之时起直至其后相关税额评定的法定时效届满后第六十日（含）期间继续有效。

(b)    if any representation or warranty contained in Article [insert the number of the Article containing Seller’s representations and warranties] is fraudulently given, it survives the Closing Date for an unlimited period of time; and

若第【填入卖方声明及保证所在条款的编号】条中的任何声明及保证存在欺诈，则该等声明及保证于“交割日”之后永远有效。

(c)    any representation or warranty that is the subject of a claim or action survives until either

(i)                 the claim is resolved or the action is final (including any appeals); or

(ii)               payment in respect of any claim or action, if any is owing, is paid, but only if the party asserting the claim or prosecuting the action gives notice pursuant to Section X.

若任何声明及保证成为诉讼或索赔的标的，则该声明及保证的效力应持续，直至：

(i)                 索赔解决或诉讼终结之时，或者

(ii)               与任何索赔或诉讼相关的事项（若存在此种应付款项）支付之时，但是，提起该索赔或诉讼的一方应当根据第6条规定发出通知。

section X.04. Right to Rely Despite Investigation. Buyer is entitled to rely fully upon the representations, warranties, and covenants of Seller set forth in this Agreement and upon the accuracy of any [document, certificate, Exhibit or Schedule][Transaction Document] given or delivered to Buyer contemporaneously with the execution of this Agreement or at the Closing, despite in each instance,

(a)    any right of Buyer to investigate fully the affairs of Seller; and

(b)   any knowledge of facts determined or determinable by Buyer pursuant to its investigation or right of investigation.

X.04. 无需调查的信赖权。无论在每一特定情形下

(a) “买方”是否享有全面调查“卖方”事务的权利；以及

(b) “买方”是否已经根据其调查结果获知了任何已经确定的事实或已经通过行使调查权获知了可以确定的事实，“买方”均有权完全信赖“卖方”在本协议中所作声明，保证和承诺以及在“本协议”签署之时或“本协议”项下交易“交割”之时交付给“买方”的任何【文件、证明、附件或附表】的准确性。

Section X.05. Basket.Buyer is entitled to seek indemnification under this Article only when the aggregate of its Indemnifiable Losses exceeds $      , in which case Seller and ParentCo. Shall indemnify Buyer pursuant to this Article from the first dollar of the Indemnifiable Losses.

X.05．起赔金额  仅在“应赔偿损失”累计金额超过$      时，“买方”及其母公司应当根据本条规定向买方赔偿“应赔偿损失”。

Section X.06. Limitation of Indemnity Obligations. The aggregate obligations of Seller and ParentCo. under this Article are limited to $        , except that the obligations are unlimited with respect to any Indemnifiable Loss arising out of or relating to fraud or willful misconduct by Seller or ParentCo.

X.06 赔偿限额   “卖方”及其母公司在本条项下的赔偿金额以$     为限，但是，就与“卖方”或其“母公司”之欺诈行为或故意不当行为引起的任何“应赔偿损失”而言，该赔偿金额将不受限制。

Section X.07. Taxes.

(a)    Net Tax Benefit Payment. If an Indemnitor is liable to an Indemnitee under this Article, the Indemnitee shall pay the Indemnitor an amount equal to the value of any net Tax benefit that the Indemnitee actually realized and used to reduce its otherwise payable Taxes.

(b)    Purchase Price Adjustment. For purposes of determining the net Tax benefit of any payment to Seller, the payment is presumed to be a Purchase Price adjustment rather than constituting taxable income to Seller, unless Buyer provides Seller an opinion of nationally recognized tax counsel that the payment should not be treated as a purchase price adjustment for federal income tax purposes.

(c)    Entitlement to a Gross-Up. An Indemnitor shall increase its payment to an Indemnitee by the amount calculated pursuant to subsection(d) if

(i)                 the Indemnitor is obligated to make a payment to an Indemnitee pursuant to this Article; and

(ii)               there is an increase to the tax liability of the Indemnitee as a result of

(A)  an Indemnifiable Loss; or

(B)   its receipt of a payment pursuant to this Article.

(d)    The Amount of the Gross-Up. The Indemnitor shall increase the payment to the Indemnitee so that

(i)                 the amount of the payment, including any increase, minus

(ii)               the amount of all taxes payable with respect to its receipt (but taking into account all correlative tax benefits resulting from an Indemnifiable Loss and its payment);

equals the amount of the payment that the Indemnitee is otherwise entitled to receive pursuant to this Article.

Section X.08. Exclusivity. The rights and remedies set forth in this Article constitute the exclusive rights and remedies of Seller, ParentCo., Buyer and Buyer’s Affiliates in respect of the matters indemnified under Sections X.01 and X.02.

Section X.09. Non-Third Party Claims.

(a)    Indemnitee to Give Notice of Claim. An Indemnitee shall notify each Indemnitor in writing, and with reasonable promptness, of any claim that does not involve a Third Party Claim (a “Claim”).

(b)    Ramification of Indemnitee’s Failure to Deliver Timely Notice. It is a condition precedent to an Indemnitor’s obligation to indemnify an Indemnitee with respect to a Claim that the Indemnitee perform its obligations under subsections (a) and (c). However, failure to satisfy the condition precedent relieves an Indemnitor of its obligation to indemnify with respect to a Claim only to the extent that the Indemnitor actually has been prejudiced by the Indemnitee’s failure to give notice as required.

(c)    Contents of Notice. In the notice delivered pursuant to subsection (a), an Indemnitee shall include the following:

(i)                 A description of any claim, event, or fact known to the Indemnitee that gives rise or may give rise to a claim by the Indemnitee against an Indemnitor based on this Agreement, including the nature and basis of the claim, event, or fact and the amount to the event known.

(ii)               A statement in prominent and conspicuous type as follows:

The indemnitee’s claim is conclusively deemed a liability of the Indemnitor if the Indemnitor does not dispute its liability by written notice to the Indemnitee before the end of the 30-day period following the indemnitor’s receipt of the notice of the claim.

(d)    Indemnitor’s Right to Dispute Claim. An Indemnitor has the right, by written notice, for a 30-day period, to dispute its liability to an Indemnitee with respect to a Claim. The 30-day period begins the day after the Indemnitor’s receipt of the Indemnitee’s notice pursuant to subsection (a) and ends at 5:00 p.m. on the 30^th day.

(e)    Good Faith Negotiation. If an Indemnitor timely disputes its liability to an Indemnitee with respect to a Claim, the Indemnitor and the Indemnitee shall negotiate in good faith to resolve the dispute.

(f)     Deemed Loss.

(i)                 Circumstances Under Which a Claim Is Deemed a Loss. The Claim set forth in the notice is conclusively deemed a Loss of an Indemnitor if

(A)  the Indemnitee has provided the Indemnitor notice as required in subsection(c); and

(B)   the Indemnitor does not dispute its liability pursuant to subsection(d).

(ii)               Payment of Deemed Loss. If a Claim ahs been deemed a Loss pursuant to subsection(i), the Indemnitor shall pay the amount of the Loss to the Indemnitee.

(A)  on demand; or

(B)   on the later date when the amount of the Loss (or a portion of it) becomes finally determined if the Indemnitee estimated the amount of the Loss (or any portion of it) in its notice.

(iii)             Other Payments. In addition to making the payment under subsection(ii), the Indemnitor shall make any other payments required by this Article, including, without limitation, the payment of the Indemnitee’s Litigation Expenses.

Section X.10. Third Party Claims.

(a)    Notice of Third Party Claim. If any third party makes any claim or brings any action, suit or proceeding against an Indemnitee (a “Third Party Claim”) with respect to which an Indemnitor may have liability, the Indemnitee must promptly notify the Indemnitor in writing of the Third Party Claim and deliver to the Indemnitor a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Receipt of this notice is a condition precedent to the Indemnitor’s liability with respect to the Third Party Claim.

(b)    The Indemnitor’s Assumption of the Defense. If an Indemnitor wishes to assume the defense of the Third Party Claim, it shall do so by sending notice of the assumption to the Indemnitee. The Indemnitor’s assumption of the defense acknowledges its obligation to indemnify. Promptly after sending the notice, the Indemnitor shall choose and employ independent legal counsel of reputable standing. After sending the notice, the Indemnitor is entitled to contest, pay, settle or compromise the Third Party Claim as it determines, subject to the provisions of subsection (e).

(c)    The Indemnitee’s Right to Undertake the Defense. Despite the provisions of subsection (b), an Indemnitee is entitled

(i)                 to participate in the defense of a Third Party Claim; and

(ii)               to defend a Third Party Claim with counsel of its own choosing and without the participation of the Indemnitor if

(A)  Indemnitor fails or refuses to defend the Third Party Claim on or before the   day after the Indemnitee has given written notice to the Indemnitor of the Third Party Claim; or

(B) representation of the Indemnitor and the Indemnitee by the same counsel would, in the opinion of that counsel, constitute a conflict of interest.

(d) Litigation Expenses. The Indemnitor shall pay for the Litigation Expenses incurred by the Indemnitee to and including the date the Indemnitor assumes the defense of the Third Party Claim. Upon the Indemnitor’s assumption of the defense of the Third Party Claim, the Indemnitor’s obligation ceases for any Litigation Expenses the Indemnitee subsequently incurs in connection with the defense of the Third Party Claim. Despite the previous sentence, the Indemnitor is liable for the Indemnitee’s Litigation Expenses, if

(i) the Indemnitee has employed counsel in accordance with the provisions of subsection (c) (ii); or

(ii) the Indemnitor has authorized in writing the employment of counsel and stated in that authorization the dollar amount of Litigation Expenses for which the Indemnitor is obligated.

(e) Compromise and Settlement of Third Party Claims.

(i) General rule. If an Indemnitor assumes the defense of a Third Party Claim, it may not effect any compromise or settlement of the Third Party Claim without the consent of the Indemnitee, and the Indemnitee has no liability with respect to any compromise or settlement of any Third Party Claim effected without its consent.

(ii) Exceptions. Despite the provisions of subsection (e)(i), an Indemnitor may effect a compromise or settlement of any Third Party Claim without an Indemnitee’s consent if the following three conditions are met:

(A)  There is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claim that may be made against the Indemnitee.

(B)   The sole relief provided is monetary damages that are paid in full by the Indemnitors.

(C)   The compromise or settlement includes, as an unconditional term, the claimant’s or the plaintiff’s release of the Indemnitee, in form and substance satisfactory to the Indemnitee, from all liability in respect of the Third Party Claim.

Section X.11. Third Party Beneficiaries. The Affiliates of Buyer are third party beneficiaries of this Agreement in accordance with its terms. Any modification of this Agreement executed by the signatories is binding upon these Affiliates, and any action taken or consent given by Buyer on its own behalf is binding upon the Affiliates for the purposes of this Agreement. This Agreement is not intended to, nor may it be deemed to, create any rights of enforcement in any person who is neither a signatory to this Agreement nor an Affiliate of Buyer.

Section X.12. Joint and Several Liability. All promises of Seller and ParentCo. In this Article are joint and several.

Section X.13. Contribution.

(a)    Agreement to Contribute. To provide for just and equitable contribution, each Indemnitor shall contribute to the Indemnifiable Losses on the basis of the relative fault of each Indemnitor as set forth in subsection (b); except that an Indemnitor is in no event required to contribute to all Indemnitees an aggregate amount in excess of the Indemnifiable Losses incurred by all Indemnitees.

(b)    Determination of Relative Fault. The relative fault of each Indemnitor is to be determined by reference to, among other things,

(i)                 whether the misrepresentations, or alleged misrepresentations, or the breach of, or alleged breach of, any warranties, covenants or other agreements contained in this Agreement relate to information supplied by, or was within the control of, a specific Indemnitor; and

(ii)               each Indemnitor’s relative intent, knowledge, access to information and opportunity to correct or prevent the breach.

Include the following on the signature page: