INDEMNITY AGREEMENT
THIS AGREEMENT made as of the [insert date]
BETWEEN:
XXX, LLC a Indiana corporation, having its office [insert address]
(the "Indemnitor")
AND:
[insert the name of the indemnitee]
(the "Indemnitee")
WHEREAS:
A. The Indemnitee has engaged the services of the Indemnitor, who is a consultant; and
B. The Indemnitee has agreed to maintain their HIPAA Compliance as provided for in Appendix A of this
agreement; and
B. In consideration of other good and valuable consideration received, the Indemnitor has agreed to
indemnify the Indemnitee for all liability, losses, damages, costs, charges, expenses, fines and penalties
which have been or may be sustained by the Indemnitee as a result of being an active client of XXX.
IN WITNESS THEREFORE that in consideration of the premises and subject to the conditions hereunder
and in consideration of the fact that the Indemnitee is an active client of XXX and other good and
valuable consideration (the receipt and sufficiency of which is hereby acknowledged by the Indemnitor),
the parties agree as follows:
1. General Indemnity. Subject to section 4 hereof, the Indemnitor agrees to indemnify and save the
Indemnitee harmless from and against:
(a) any and all costs, charges, expenses, fees, damages or liabilities, regardless of when they arose and
howsoever arising and whether arising in law or in equity or under statute, regulation or governmental
ordinance of any jurisdiction, common law or otherwise (including legal or other professional fees), and
whether incurred alone or jointly with others, which the Indemnitee may suffer, sustain, incur or be
required to pay arising out of, in connection with or incidental to any action, suit, demand, proceeding,
investigation or claim which may be brought, commenced, made, prosecuted or threatened against the
Indemnitee (any of the same hereinafter being referred to as a "Claim") for or in respect of any act,
deed, matter or thing done, made, permitted or in respect of any omission to do, make or permit any
act, deed, matter or thing whatsoever required or desirable to do;
(b) any and all costs, charges, expenses, fees, damages or liabilities which the Indemnitee may suffer,
sustain or incur or be required to pay in connection with investigating, initiating, defending, preparing
for, providing evidence in, instructing and receiving the advice of his own or other counsel, or any
amount paid to satisfy any judgment made, fine imposed, damages or costs or any amount paid or
liability incurred by the Indemnitee to settle any Claim, or any amount of tax assessed against the
Indemnitee in respect of any indemnity under this Agreement;
(c) that to the extent not satisfied, paid or reimbursed by the Indemnitor, the Indemnitor shall pay or
reimburse the Indemnitee a maximum of $100,000.00 for any and all costs, charges, expenses, fees or
liabilities the Indemnitee sustains, incurs or is required to pay in or in relation to the management,
operations, activities or affairs of the Indemnitor in the Indemnitee’s capacity as a director and/or
officer of the Indemnitor, whether or not incurred in connection with any Claim.
2. Specific Indemnity for Statutory Obligations. Without limiting the generality of the provisions of
section 1 hereof and subject to section 4 hereof, the Indemnitor agrees to indemnify and save the
Indemnitee harmless from and against any and all charges, costs, expenses, penalties, assessments and
liabilities arising by operation of statute and incurred by the Indemnitee upto a maximum amount of
$100,000.00
3. Exclusion of Liability. Subject to section 4 hereof, the Indemnitee, in his capacity as an active client of
Carosh, shall not be liable for:
(a) any act, default, omission, or neglect of any other client, employee, director or officer of the
Indemnitor;
(b) any loss or damages incurred by the Indemnitor owing to any receipt or act of any consultant,
employee, director or officer of the Indemnitor in which the Indemnitee has concurred or joined in for
conformity;
(c) any loss or damages incurred by the Indemnitor through the insufficiency or deficiency of title to any
property acquired by order of the board of directors or the officers of the Indemnitor for or on behalf of
the Indemnitor;
(d) the insufficiency or deficiency of any security in or upon which any money of the Indemnitor shall be
invested or loaned;
(e) any loss or damage arising from the bankruptcy, insolvency or tortious act of any person with whom
any money, security or effect of the Indemnitor shall be deposited;
(f) any loss, conversion, misapplication or misappropriation of or any damage resulting from any
dealings with any money, security or other asset belonging to the Indemnitor;
(g) any loss or damage occasioned by any error of judgment or oversight on the part of the Indemnitee;
or
(h) any other loss, damage or misfortune whatever.
4. Limitation of Indemnity and Exclusion from Liability. The indemnity provided for in sections 1 and 2
will only be effective if the client:
(a) acted honestly and in good faith with a view to the best interests of the company where they are
working, and
5. Court Applications. The Indemnitor represents and warrants that it will in a timely manner take all
necessary steps, including without limitation any and all necessary court applications, to discharge its
obligations under this Agreement.
6. Extensions, Modifications. Except as otherwise provided herein, this Agreement is absolute and
unconditional and the obligations of the Indemnitor shall not be affected, discharged, impaired,
mitigated or released by any extension of time, indulgence or modification which the Indemnitee may
extend or make with any person making any Claim or demand against the Indemnitee in connection
with his duty as a director and/or officer of the Indemnitor or in respect of any liability incurred by him
as a director and/or officer of the Indemnitor.
7. Other Rights and Remedies. The indemnification provided by this Agreement shall not be deemed to
derogate from or exclude any other rights to which the Indemnitee may be entitled under any provision
of any statute or otherwise at law.
8. Insolvency. The liability of the Indemnitor under this Agreement shall not be affected, discharged,
impaired, mitigated or released by reason of the discharge or release of the Indemnitee in any
bankruptcy, insolvency, receivership, or other proceedings of creditors.
9. Multiple Proceedings. No action or proceeding brought or instituted under this Agreement and no
recovery pursuant thereto shall be a bar or defence to any further action or proceeding which may be
brought under this Agreement.
10. Modification. No modification of this Agreement shall be valid unless the same shall be in writing
and signed by the Indemnitor and the Indemnitee, provided however that if the Indemnitee is requested
to or agrees to act as a director and/or officer of any subsidiary of the Indemnitor, the indemnity
provided for herein shall be deemed to apply to the Indemnitee acting as such, mutatis mutandis.
11. Procedure for Claims.
(1) In the event the Indemnitee is named as a party in any action, claim, suit, proceeding or investigation
upon which the Indemnitee intends to base a claim for indemnification hereunder, the Indemnitee shall
give the Indemnitor prompt written notice of such action, claim, suit, proceeding or investigation
(provided, however, that failure of the Indemnitee to provide such notice shall not relieve the
Indemnitor of any liability to the Indemnitee the Indemnitor may have under this Agreement except to
the extent that the Indemnitor is materially prejudiced by such failure).
(2) The Indemnitor shall participate in and, assume the defence of any such action, including for
certainty any derivative action, claim, suit, proceeding or investigation all at the Indemnitor’s expense
provided, however, that counsel retained by the Indemnitor shall be satisfactory to the Indemnitee in
the exercise of his reasonable judgement. Notwithstanding the Indemnitor’s assumption of the defense
of such action, claim, suit, proceeding or investigation, the Indemnitee shall have the right to employ
separate counsel and to participate in, but not control, the defense of such action, claim, suit,
proceeding or investigation, and the Indemnitor shall bear the reasonable fees, costs and expenses of
such separate counsel as such fees, costs and expenses are incurred (provided that with respect to any
single action, claim, suit, proceeding or investigation, the Indemnitor shall not be required to bear the
fees, costs and expenses of more than one such counsel in any single jurisdiction) if (a) the use of
counsel chosen by the Indemnitor to represent the Indemnitee would present such counsel with a
conflict of interest; (b) the defendants, respondents or other parties in any such action, claim, suit,
proceeding or investigation include both the Indemnitee on the one hand and the Indemnitor on the
other hand, and the Indemnitee has reasonably concluded that representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them (in
which case the Indemnitor shall not have the right to direct the defense of such action, claim, suit,
proceeding or investigation on behalf of the Indemnitee); (c) the Indemnitor shall not have employed
counsel satisfactory to the Indemnitee in the exercise of the Indemnitee’s reasonable judgment to
represent him, within a reasonable time after notice of the institution of such action, proceeding or
investigation; or (d) the Indemnitor authorizes the Indemnitee to employ separate counsel at the
Indemnitor’s expense.
(3) The Indemnitee shall cooperate with the Indemnitor in the Indemnitor’s defense by providing such
information and other assistance which the Indemnitor may reasonably request in connection with such
defense.
(4) The Indemnitor shall not, without the Indemnitee’s prior written consent, settle, compromise,
consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit or
proceeding in respect of which indemnification may be sought hereunder (whether or not the
Indemnitee is a party thereto) unless such settlement, compromise, consent or termination includes a
release of the Indemnitee from any liabilities arising out of such action, claim, suit or proceeding. The
Indemnitee shall not, without the Indemnitor’s prior written consent, admit liability, settle, compromise,
consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit,
investigation or proceeding referred to in the preceding paragraph and the Indemnitee shall not disclose
the existence of this Agreement unless required by law, subpoena, court order or upon the advice of
counsel.
12. Resignation. Nothing in this Agreement shall prevent the Indemnitee from resigning as a director
and/or officer of the Indemnitor or from exercising any rights he may have to terminate any consulting,
management, or other agreement he may have with the Indemnitor.
13. Termination. The obligations of the Indemnitor shall not terminate or be released upon the
Indemnitee ceasing to act as a director and/or officer of the Indemnitor at any time or times and such
obligations shall survive the termination or resignation of the Indemnitee. The Indemnitor’s obligations
may be terminated or released only by a written instrument executed by the Indemnitee.
15. Advances. In any case in which the Indemnitee incurs or becomes liable to pay any amount in
respect of which he is entitled to be indemnified by the Indemnitor pursuant to the provisions of this
Agreement, the Indemnitor shall advance such amount to the Indemnitee by way of loan forthwith upon
written demand therefor by the Indemnitee to the Indemnitor. Such notice shall be accompanied by a
written undertaking by the Indemnitee to repay the full amount of any funds so advanced forthwith
upon it being determined by the court on application for such approval, that the Indemnitee is not
entitled to indemnification in respect thereof. In that event any amount so advanced shall be repaid
forthwith following such determination and shall bear interest at 2% above the prime rate charged by
the Indemnitor’s bankers to its preferred commercial customers from time to time during the period
from the date of advance to the date of repayment.
16. Notices. Any notice to be given by one party to the other shall be sufficient if delivered by hand, or
sent by means of electronic transmission (in which case any message so transmitted shall be
immediately confirmed in writing and mailed as provided above), addressed, as the case may be:
(a) To the Indemnitor:
[insert details]
(b) To the Indemnitee:
_____________________
_____________________
Facsimile: ____________
or at such other address of which notice is given by the parties pursuant to the provisions of this section.
Such notice shall be deemed to have been received when delivered, if delivered, and if mailed, on the
fifth business day (exclusive of Saturdays, Sundays and statutory holidays) after the date of mailing. Any
notice sent by means of electronic transmission shall be deemed to have been given and received on the
day it is transmitted, provided that if such day is not a business day then the notice shall be deemed to
have been given and received on the next business day following. In case of an interruption of the postal
service, all notices or other communications shall be delivered or sent by means of electronic
transmission as provided above, except that it shall not be necessary to confirm in writing and mail any
notice electronically transmitted.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of
the state of Indiana and all disputes arising under this Agreement shall be referred to and the parties
hereto irrevocably attorn to the jurisdiction of the courts of the state of Indiana.
18. Other Acts. The Indemnitor and the Indemnitee agree that they shall do all such further acts, deeds
or things and execute and deliver all such further documents, instruments or certificates as may be
necessary or advisable for the purpose of assuring and confirming unto the Indemnitee the rights hereby
created or intended, and of giving effect to and carrying out the intention or facilitating the performance
of the terms of this Agreement.
19. Interpretation. Wherever the singular or masculine are used throughout this Agreement, the same
shall be construed as meaning the plural or the feminine or body politic or corporate and whenever the
plural is used throughout this Agreement the same shall be construed as meaning the singular, where
the context or the parties hereto so require, and the liabilities and obligations of the Indemnitor
hereunder shall be joint as well as several.
20. Invalid Terms Severable. If any term, clause or provision of this Agreement shall be held invalid or
contrary to law, the validity of any other term, clause or provision shall not be affected and such invalid
term, clause or provision shall be considered severable.
21. Entire Agreement. This Agreement shall supersede and replace any and all prior agreements
between the parties hereto respecting the matters set forth herein and shall constitute the entire
agreement between the parties in respect of the matters set forth herein. There are no representations,
warranties, collateral agreements, or conditions expect as set forth herein.
22. Binding Effect. All of the agreements, conditions and terms of this Agreement shall extend to and be
binding upon the Indemnitor and their heirs, executors, administrators and other legal representatives,
successors and assigns and shall inure to the benefit of and may be enforced by the Indemnitee and his
heirs, executors, administrators and other legal representatives, successors and assigns.
23. Independent Legal Advice. The Indemnitor acknowledges that it has been advised by the Indemnitee
to obtain independent legal advice with respect to entering into this Agreement, that they have
obtained such independent legal advice or have expressly waived such advice, and that they are
entering into this Agreement with full knowledge of the contents hereof, of their own free will and with
full capacity and authority to do so.
24. Power and Authority of Indemnitor. The Indemnitor represents and warrants to the Indemnitee that
this Agreement when duly and validly executed and delivered by the Indemnitor will constitute a legal,
valid and binding obligation of the Indemnitor enforceable against the Indemnitor in accordance with
the terms hereof and that the Indemnitor, if a corporation, is duly incorporated and organized, validly
existing and in good standing under the laws of its jurisdiction of incorporation, has the necessary
corporate power, capacity and authority to enter into this Agreement and perform its obligations
hereunder and that the execution and delivery of this Agreement by the Indemnitor has been duly and
properly authorized by all necessary corporate action and that.
25. Counterparts. This Agreement may be signed in counterparts, in writing or by electronic facsimile
transmission or by other means of electronic communication capable of producing a printed copy, each
of which will be deemed to be an original and all such counterparts together will constitute one and the
same instrument and notwithstanding the date of execution, will be deemed to be effective as of the
date set forth above.
IN WITNESS WHEREOF the Indemnitor and the Indemnitee have hereunto set their hands and seals as of
the day and year first above written.
By the Indemnitor:
[insert name of company]
Per: /s/ ________________________
Authorized Signatory
SIGNED, SEALED and DELIVERED by
[ ] (Indemnitee) in the presence of:
_____________________
Name
_____________________
Address
_____________________
_____________________
Occupation
)
)
)
)
)
)
)
)
)
)
)
)
/s/ ______________
(Indemnitee)
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