Fillable Printable Sample Indemnity Agreement

Sample Indemnity Agreement

Motion Vendor, 1-04

INDEMNITY AGREEMENT

This INDEMNITY AGREEMENT (this “Indemnity Agreement”), dated

, 200 is made by and

between MOTION INDUSTRIES, INC., a Delaware corporation (hereinafter “MOTION”) and

, a

[state] corporation/ limited liability company/ partnership (circle one) (hereinafter “SUPPLIER”).

WHEREAS, MOTION, or its parent company and affiliated entities have purchased, or at some future

time may purchase, goods and products (the “Products”) from SUPPLIER; and

WHEREAS, MOTION desires to be indemnified from, defended against, and held harmless from

certain liability, losses, damages, costs, or expense which it may sustain or incur; and

WHEREAS, SUPPLIER has agreed to indemnify, defend, and hold MOTION harmless as herein

provided;

NOW, THEREFORE, for and in consideration of the purchase by MOTION of goods and products

from SUPPLIER and other good and valuable consideration, the receipt and sufficiency of which are hereby

acknowledged, and intending legally to be bound hereby, SUPPLIER and MOTION hereby agree as follows:

1. INDEMNIFICATION

SUPPLIER will protect, defend and indemnify MOTION, its parent company, divisions, subsidiaries

and affiliated business entities and their respective employees, agents, officers, and directors (together,

the “Indemnified Parties”) from and hold them harmless against all liability, losses, damages, costs or

expenses of any nature, including without limitation, reasonable attorney’s fees, which they may at any

time suffer, incur, or be required to pay resulting from or arising out of (i) any claim that the Products

are defective, negligently designed or manufactured in any manner, or otherwise determined to be the

cause of injury or death to persons, or damage to property, or both; (ii) any claim that the Products or

the manufacture, sale or labeling of the Products fails to comply with any governmental requirement, or

the labeling on any Products, or on or within the packaging for any Products (including any instructions

or warnings thereon), is inadequate in any manner; (iii) any claim that the Products should have been

recalled pursuant to any governmental requirement; (iv) SUPPLIER’s negligence or willful misconduct

in supplying the Products; or (v) any claim, action, suit or proceeding by any person, firm, governmental

agency or corporation resulting from or arising out of (i) through (iv) above. This indemnification shall

not apply if and to the extent that such injury, death or damage is directly caused solely by any of the

following: (a) failure on the part of MOTION to furnish instruction materials provided by SUPPLIER

for inclusion in packages in which Products are sold; (b) sale of Products by MOTION without

packaging where packaging is provided by SUPPLIER and where such packaging contains the required

labeling and instructions on the use of the Product; (c) alteration of any Products by MOTION; (d)

negligent installation or repair of Products by MOTION; or (e) willful misconduct of MOTION.

2. INTELLECTUAL P ROPERTY INFRINGEMENT

SUPPLIER will protect, indemnify, defend and hold the Indemnified Parties harmless from and against

all liability, losses, damages, costs or expenses which they may at any time suffer, incur or be required

to pay by reason of any claim, action, suit, or proceeding that may be brought for damages or injunctive

relief based upon any actual or alleged violation or infringement of any patent, trademark, copyright or

other intellectual property right by any Product sold by SUPPLIER to MOTION. Should any Products

become the subject of such a claim of in fringement, MOTION shall permit SUPPLIER, at it s option and

expense, either to procure for MOTION the right to continue selling Products, to replace or modify

Products so that they become non-infringing, or to require return of Products in exchange for full credit.

SUPPLIER shall have no liability to MOTION with respect to any claim of infringement of any such

Motion Vendor, 1-04

patent, trademark, copyright or other intellectual property right based solely upon (a) the combination

by MOTION of Products sold by SUPPLIER with equipment or devices not sold by SUPPLIER; or (b)

Products supplied according to a design other than that of SUPPLIER and which is required by

MOTION.

3. LEGAL ACTION

MOTION will give SUPPLIER prompt notice of any claims, actions, suits, or proceedings instituted

against MOTION with respect to the subject of the indemnity contained herein, and shall provide to

SUPPLIER reasonable information and assistance in the defense thereof. SUPPLIER agrees at its own

expense to defend against any such claims, actions, suits or proceedings, rightfully or wrongfully

instituted with legal counsel reasonably acceptable to MOTION; provided, however

, that SUPPLIER

shall not settle any claim, action, suit or proceeding which i mposes upon MOTION any obligation, or in

any way prejudices the rights of MOTION, other than as set forth herein, without MOTION’s written

consent. SUPPLIER agrees to satisfy any and all judgments which may be rendered against the

Indemnified Parties or SUPPLIER with respect thereto. Notwithstanding the foregoing, MOTION shall

have the option to employ attorneys, at the sole cost and expense of SUPPLIER, to defend any claim,

action, suit, or proceeding in the event SUPPLIER fails to assume such defense. SUPPLIER agrees to

extend the terms of this indemnity to claims made against any party who has acquired any of the

Products in the course of normal commercial sales, whether or not MOTION is the direct seller to such

party.

4. REMEDIES

In the event SUPPLIER refuses to defend any claim, action, suit or proceeding, or refuses to satisfy any

settlement or judgment pursuant to the terms of this Indemnity Agreement, MOTION shall be entitled to

retain from payments otherwise due to SUPPLIER such amounts as shall be reasonably considered

necessary to satisfy any claim, action, suit, or proceeding for damages that fall within SUPPLIER’s

indemnity obligations set forth herein, until such claim, action, suit, or proceeding has been settled and

satisfactory evidence to such effect has been furnished to MOTION.

In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights

under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or

obligations under this Agreement, the prevailing party will be awarded reasonable attorney fees,

together with any costs and expenses, to resolve the dispute and to enforce the final judgment.

5. LIABILITY INSURANCE

During the term of the business relationship between SUPPLIER and MOTION, SUPPLIER will

procure and maintain in full force and effect a product liability insurance policy or policies, naming

MOTION as an additional named insured, covering all goods and products supplied to MOTION by

SUPPLIER under this Indemnity Agreement. Such policy or policies shall be written by a reputable

insurance company or companies in the amount of not less than $5,000,000, or at the levels requested by

MOTION if warranted by the nature or scope of the business relationship of the parties, and shall be on

an occurrence basis. Such policy shall contain a requirement that MOTION will be notified of any

proposed cancellation or modification at least thirty (30) days prior to the effective date of such

cancellation or modification. Upon execution of this Agreement, and on an annual basis thereafter,

SUPPLIER shall furnish to MOTION certificates of insurance evidencing compliance with the

foregoing requirements. Maintenance of such insurance and the performance by SUPPLIER of its

obligations under this paragraph shall not relieve SUPPLIER of liability under the indemnity set forth in

this Indemnity Agreement.

6. BENEFIT

Motion Vendor, 1-04

This Indemnity Agreement shall be binding upon and shall inure to the benefit of the parties, their legal

representatives, successors and assigns.

7. TERM; TERMINATION

This Indemnity Agreement shall continue in full force and effect while SUPPLIER is selling any

Products to MOTION. This Indemnity Agreement may be terminated by any party upon ninety (90)

days written notice; provided, however

, that such termination shall only be effective upon the

simultaneous termination of any supply agreement or other supply arrangement between MOTION and

SUPPLIER. Termination shall not relieve SUPPLIER from liability assumed hereunder prior to such

termination.

8. MISCELLANEOUS

This Indemnity Agreement constitutes the entire agreement of the parties with respect to the matters

hereto. The terms set forth in this Indemnity Agreement supersede, amend, alter and control any similar

or related terms set forth in contracts, agreements or other documents or oral understandings. No related

terms set forth in any contracts, agreements, invoices or purchase orders exchanged between the parties

or their affiliates at any time will have any effect on the terms set forth in this Indemnity Agreement.

This Indemnity Agreement shall be governed by the laws of the State of Alabama, without regard to

conflict of law principles. No amendment, waiver or modification of the provisions hereof shall be

valid unless in writing and signed by the parties hereto and then only to the extent therein set forth.

Each party agrees to perform all further acts and execute, acknowledge, and deliver any documents

reasonably necessary, appropriate or desirable, to carry out the provisions of this Indemnity Agreement.

Every covenant, term, and provision of this Indemnity Agreement shall be construed simply according

to its fair meaning and not strictly for or against any party. If any one or more of the provisions of the

Indemnity Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or

unenforceable in any respect, the validity, legality , and enforceability of the remaining provisions of the

Indemnity Agreement will not in any way be affected or impaired thereby. If any provision of this

Indemnity Agreement is unenforceable for any reason whatsoever, such provision shall be appropriately

limited and given effect to the extent that it may be enforceable. This Indemnity Agreement may be

signed via facsimile and in one or more counterparts, each of which when executed shall be deemed an

original, and all of which taken together shall constitute one and the same document.

Each party represents that the person executing this Indemnity Agreement has the power and authority

to bind such party to the obligations herein.

[Signatures Appear on Next Page]

Motion Vendor, 1-04

IN WITNESS WHEREOF, the parties hereto have executed this Indemnity Agreement the day and year

first written above.

MOTION INDUSTRIES, INC.

By:

Name:

Title:

(Corporate Seal)

(SUPPLIER)

By:

Name:

Title:

(Corporate Seal)