Is indemnification a remedy?

Indemnification Provisions As the name suggests, an indemnification as an exclusive remedy provision means that the right to indemnification provided under the M&A agreement is the parties' exclusive remedy for any breach of the representations, warranties, covenants, agreements, and obligations in the M&A agreement.

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Indemnity Provisions - Exclusivity of Indemnity as a Remedy

Suffolk New York Indemnity Provisions - Exclusivity of Indemnity as a Remedy

Name: Suffolk New York Indemnity Provisions - Exclusivity of Indemnity as a Remedy
Brand: US Legal Forms
Rating: 4.84 (265 reviews)

Category:

Contracts - Clauses - Indemnification

State:

Multi-State

County:

Suffolk

Control #:

US-ND1012

Format:

Instant download

Description

This form provides boilerplate contract clauses that define the exclusivity or nonexclusivity of indemnity as a remedy under the terms of the contract agreement. Different language options for exclusivity and nonexclusivity are included.

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To indemnify means to compensate someone for his/her harm or loss. In most contracts, an indemnification clause serves to compensate a party for harm or loss arising in connection with the other party's actions or failure to act. The intent is to shift liability away from one party, and on to the indemnifying party.

Indemnification, according to the court, is an offensive righta swordallowing the indemnitee to seek indemnification. On the other hand, hold harmless is a defensive measure providing the right not be bothered by the other party itself seeking indemnification. Under this view, hold harmless shields one party

Indemnification Provisions As the name suggests, an indemnification as an exclusive remedy provision means that the right to indemnification provided under the M&A agreement is the parties' exclusive remedy for any breach of the representations, warranties, covenants, agreements, and obligations in the M&A agreement.

Indemnity can be claimed for loss arising out of the action of a third party to a contract, whereas damages can only be claimed for loss arising out of the actions of the parties upon breach of contract.

In private acquisition transactions, indemnification is a contractual remedy for losses incurred after the closing. It generally covers losses resulting from breaches of representations, warranties, covenants, or agreements in the acquisition agreement.

After a closing, the buyer (as the new owner and operator of the asset or business that was sold) is most likely to be subject to the risk of post-closing losses and will often be the party to seek broader indemnification.

Court will not enforce an indemnification provision that indemnifies an indemnitee for its own negligence unless the intention of the parties is clearly and unambiguously expressed. Courts first look for specific language in the contract that address the fault or negligence of the indemnitee.

The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible. Expressions, supra, 86 Cal. App.

Tips for Enforcing Indemnification Provisions Identify Time Periods for Asserting Indemnification Rights.Provide Notice in a Timely Fashion.Notify All Concerned Parties.Understand Limitations on Recovery.Exclusive Remedy.Scope of Damages.Claims Process/Dispute Resolution.

Indemnification provisions are generally enforceable. There are certain exceptions however. Indemnifications that require a party to indemnify another party for any claim irrespective of fault ('broad form' or 'no fault' indemnities) generally have been found to violate public policy.

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Suffolk New York Indemnity Provisions - Exclusivity of Indemnity as a Remedy

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Interesting Questions

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