The Indemnity & Undertaking Agreement is a crucial risk management tool used in various commercial contexts under United States jurisdiction. It is typically employed when one party needs to protect another against specific risks, losses, or liabilities, while also establishing concrete obligations or commitments between the parties. This document becomes particularly relevant in corporate transactions, project developments, service agreements, or any situation where risk allocation and specific performance commitments are essential. The agreement must comply with both federal and state-specific requirements, particularly regarding the enforceability of indemnification provisions. It is commonly used in conjunction with other commercial agreements to provide additional security and clarity regarding risk allocation and specific obligations. The document requires careful consideration of state-specific anti-indemnity statutes and should be tailored to the particular commercial context and jurisdiction where it will be applied.
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1. Parties: Identification of the indemnifier(s) and indemnitee(s) with full legal names and addresses
2. Background: Context of the agreement, relationship between parties, and reference to any related primary agreements
3. Definitions: Detailed definitions of key terms including 'Indemnified Matters', 'Claims', 'Losses', and other relevant terms
4. Scope of Indemnity: Clear description of what losses, damages, and circumstances are covered by the indemnity
5. Undertakings: Specific actions or obligations that parties commit to perform or refrain from performing
6. Claims Procedure: Process for making and responding to indemnification claims, including notice requirements and timeframes
7. Duration and Survival: Term of the agreement and which provisions survive termination
8. Limitations and Exclusions: Caps, carve-outs, and exclusions from the indemnity obligations
9. Payment Terms: Timing and method of indemnity payments, including any set-off rights
10. Governing Law and Jurisdiction: Applicable law and courts having jurisdiction over disputes
11. General Provisions: Standard boilerplate clauses including notices, amendments, and assignment
1. Security: Include when additional security (such as parent company guarantees or letters of credit) is required to support the indemnity
2. Insurance: Include when specific insurance requirements are tied to the indemnity obligations
3. Third Party Rights: Include when indemnity benefits extend to third parties or when third party rights need to be explicitly excluded
4. Tax Provisions: Include when tax implications of indemnity payments need to be addressed
5. Currency Provisions: Include for cross-border agreements where payments may be made in different currencies
6. Step-In Rights: Include when one party needs the right to take over certain activities to minimize losses
7. Alternative Dispute ReĂÜĚŇÖ±˛Ą: Include when parties prefer mediation or arbitration over court proceedings
1. Schedule of Indemnified Matters: Detailed list or description of specific matters, risks, or circumstances covered by the indemnity
2. Claims Procedure Protocol: Detailed procedures, forms, and timeframes for making and processing claims
3. Security Details: Specifications of any security provided, including forms of guarantees or security documents
4. Insurance Requirements: Detailed insurance requirements including types, amounts, and acceptable insurers
5. Form of Notice: Template forms for various notices required under the agreement
6. Calculation of Losses: Methodology and principles for calculating indemnifiable losses
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