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Mutual Indemnity Agreement Template
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Mutual Indemnity Agreement Template
This Mutual Indemnity Agreement (the “Agreement”) is entered into as of [Effective Date] by and between:
Party A: [Legal Name], a [State/Country] [entity type], address: [Address] (“Party A”).
Party B: [Legal Name], a [State/Country] [entity type], address: [Address] (“Party B”).
Party A and Party B may each be referred to as an “Indemnifying Party” or “Indemnified Party,” as applicable.
1. Definitions
1.1 Claim means any third-party claim, demand, action, suit, or proceeding.
1.2 Losses means damages, judgments, settlements, penalties, fines (to the extent permitted), and reasonable attorneys’ fees and costs.
1.3 Affiliate (optional) means: [Define if needed].
2. Mutual Indemnity
2.1 Indemnity by Party A. Party A will indemnify Party B from and against Losses arising out of any Claim to the extent caused by:
(a) Party A’s negligence or willful misconduct;
(b) Party A’s breach of this Agreement; or
(c) Party A’s violation of applicable law.
2.2 Indemnity by Party B. Party B will indemnify Party A from and against Losses arising out of any Claim to the extent caused by:
(a) Party B’s negligence or willful misconduct;
(b) Party B’s breach of this Agreement; or
(c) Party B’s violation of applicable law.
2.3 Comparative Fault. Losses will be allocated based on the Parties’ relative fault to the extent permitted by law.
3. Defense and Control (Optional)
3.1 Duty to Defend (Select One):
☐ Indemnifying Party has a duty to defend the Claim with counsel reasonably acceptable to Indemnified Party.
☐ No duty to defend; indemnity covers Losses after determination/settlement only.
3.2 Control of Defense: If a duty to defend applies, Indemnifying Party controls the defense, provided that Indemnified Party may participate with its own counsel at its own expense (unless conflict of interest).
3.3 Settlement Consent: Indemnifying Party may not settle any Claim without Indemnified Party’s consent if the settlement: (i) includes an admission of fault by Indemnified Party, (ii) imposes injunctive relief on Indemnified Party, or (iii) does not include a full release of Indemnified Party.
4. Indemnification Procedure
4.1 Notice. Indemnified Party will provide prompt written notice of any Claim, but failure to give prompt notice will only reduce obligations to the extent the Indemnifying Party is materially prejudiced.
4.2 Cooperation. Indemnified Party will reasonably cooperate in the defense and provide information as needed.
4.3 Mitigation. Each Party will use reasonable efforts to mitigate Losses.
5. Exclusions
5.1 No Party is required to indemnify the other for Losses to the extent caused by the other Party’s negligence, willful misconduct, or breach.
5.2 Optional additional exclusions: [List].
6. Limitation of Liability (Optional)
6.1 Consequential Damages: ☐ excluded ☐ not excluded.
6.2 Liability Cap (Select One):
☐ No cap
☐ Cap at $[Amount]
☐ Cap at fees paid under [agreement] in last [__] months
☐ Other: [Cap]
6.3 Carve-Outs (Optional): Liability limits do not apply to: ☐ indemnity obligations ☐ confidentiality breaches ☐ IP infringement ☐ willful misconduct ☐ other: [List].
7. Insurance (Optional)
7.1 Each Party will maintain: ☐ general liability ☐ professional liability ☐ other: [Types], with limits of at least $[Amount].
7.2 Proof of insurance will be provided upon request.
8. Term
8.1 This Agreement begins on the Effective Date and remains in effect until terminated by either Party with [__] days’ notice.
8.2 Sections intended to survive (indemnity, limitations, etc.) survive termination.
9. Notices
9.1 Notices must be in writing and delivered to the addresses above.
10. Governing Law
10.1 This Agreement is governed by the laws of [State/Country].
11. Entire Agreement
11.1 This Agreement is the entire agreement regarding mutual indemnity between the Parties.
Signatures
Party A: [Legal Name]
Name/Title: [Authorized Signer]
Date: [Date]
Signature: ___________________________
Party B: [Legal Name]
Name/Title: [Authorized Signer]
Date: [Date]
Signature: ___________________________
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Mutual Indemnity Agreement Template
MUTUAL INDEMNITY AGREEMENT TEMPLATE FAQ
What is a mutual indemnity agreement?
A Mutual Indemnity Agreement is a contract where both parties agree to protect each other from certain losses or claims. It often covers third-party claims arising from each party’s negligence, misconduct, or breach of the agreement. “Mutual” means the obligations go both ways rather than only one party indemnifying the other.
What does indemnity typically cover?
Indemnity commonly covers third-party claims, damages, settlements, judgments, fines, and reasonable legal fees. This template includes options to define whether “defense” is included and whether indemnity applies to first-party claims.
What’s the difference between indemnity and limitation of liability?
Indemnity shifts responsibility for certain claims between parties (often third-party claims). A limitation of liability caps or excludes certain damages between the parties. Many agreements include both to manage overall risk.
Should you include a duty to defend?
Many indemnity clauses include a duty to defend (pay for attorneys) in addition to paying losses. This template includes a clear “defend” option and who controls the defense.
What should be excluded?
Common exclusions include: losses caused by the other party’s negligence, unauthorized modifications, or misuse of products/services. This template includes mutual carve-outs and a comparative fault approach.
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