赔偿条款（Indemnification)
2011-09-08 16:47阅读：
赔偿条款（Indemnification）
典型的条款
Indemnitor shall indemnify
Indemnitee against any losses, liabilities, and claims arising out
of or relating to [a particular event, litigation, or
misrepresentation].
(尽管此类规定初看起来包含了优秀的赔偿条款所应具备的某些标记性词句，但细看之下，这一规定将赔偿方暴露于其所不希望承担的法律责任的重压之下，而受偿方也会处于未来损失不受保护的状态。)
赔偿方典型定义：
“Indemnitors” means the
Licensor and its stockholders, Steven Smith and Roberta
Jones.
“Indemnitors” means the Seller
and ParentCo. And their respective successors and
assignes.
赔偿方代表的任命（在有多个赔偿主体的情况下，赔偿方可能会任命一名代表来表达它们的集体利益）
The Indemnitor
Representative.
(a) Appointment of the
Indemnitor Representative. Each Indemnitor constitute and appoints
the Indemnitor Representative as that Indemnitor’s true lawful
attorney-in-fact to act for and on behalf of that Indemnitor in all
matters arising out of or relating to this Article and the
liability or asserted liability of that Indemnitor under this
Article, including, without limitation,
(i) accepting and agreeing to
the liability of that Indemnitor with respect to any Claim or Third
Party Claim;
(ii) objecting to any Claim or
Third Party Claim;
(iii) disputing the liability
of that Indemnitor or the amount of the liability with respect to
any Claim or Third Party Claim;
(iv) defending, compromising
and settling the liability of that Indemnitor with respect to any
Claim or Third Party Claim;
(v) accepting, or refusing to
accept, the compromise and settlement of any Claim or Third Party
Claim on behalf of that Indemnitor;
(vi) instituting and
prosecuting those actions (including arbitration proceedings) as
the Indemnitor Representative deems appropriate in connection with
any of the previous clauses; and
(vii) retaining counsel,
accountants, appraisers, and other advisors in connection with any
of the previous clauses, all for the account of the
Indemnitors.
Each Indemnitor agrees to be
fully bound by the acts, decisions and agreements of the Indemnitor
Representative taken and done pursuant to the authority granted in
this subsection(a).
(b) Indemnification of the
Indemnitor Representative. Each Indemnitor shall indemnify and
defend the Indemnitor Representative against any liability that it
incurs arising out of or relating to its act or omission pursuant
to the authority granted to it in subsection(a), except for an act
or omission that constitutes gross negligence or willful
misconduct.
受偿方
（受偿方希望将所有可能对赔偿标的的事项负有责任的任何其他个人、组织）
“Affiliate” means, with respect
to any person or entity, each stockholder, subsidiary, officer,
director, agent, and employee of that person or entity.
“Indemnitee” means the Licensee and each Affiliate of the
Licensee.
第三方受益人
（在赔偿方赔偿受偿方之关联方的情形下，该等关联方即为第三方受益人。）
Third Party Beneficiaries. The
Affiliates of Buyer are third party beneficiaries of this Agreement
in accordance with its terms. Any modification of this Agreement
executed by the signatories is binding upon these Affiliates, and
any action taken or consent given by Buyer on its own behalf is
binding upon the Affiliates for the purposes of this Agreement.
This Agreement is not intended to, nor may it be deemed to, create
any rights of enforcement in any person who is neither a signatory
to this Agreement nor an Affiliate of Buyer.
赔偿承诺
赔偿方有义务为受偿方抗辩：
The Indemnitor shall indemnify
and defend the Indemnitee against …
受到赔偿保护的事项应当包括“所有专业人士收费及费用，包括合理的律师费和开销
all professionals’ fees and
expenses, including reasonable attorneys’ fees and
disbursements.
Contractor
(a) Assume all risks
of
(i) injury to property or
persons used or employed on or in connection with the work;
and
(ii) damage or injury to any
persons or property wherever located, resulting from any action or
operation under the contract;
And
(b) Shall defend the Owner
against all claims on account of any such damage or
injury.
连带责任
Jointly Severally. All of the
Indemnitors’ promises in this Article are joint and
several.
Contribution
(a)
Agreement to Contribute. To provide for just and equitable
contribution, each Indemnitor shall contribute to the Indemnifiable
Losses on the basis of the relative fault of each Indemnitor as set
forth in subsection(b); except that an Indemnitor is in no event
required to contribute to all Indemitees an aggregate amount in
excess of of the Indemifiable Losses incurred by all
Indemnitees.
(b)
Determination of Relative Fault. The relative fault of each
Indemnitor is to be determined by reference to, among other
things.
(i)
whether the misrepresentations, or alleged
misrepresentations, or the breach of, or alleged breach of, any
warranties, covenants or other agreements contained in this
Agreement relate to information supplied by, or was within the
control of, a special Indemnitor; and
(ii)
each Indemnitor’s relative intent, knowledge, access to
information and opportunity to correct or prevent the
breach.
赔偿范围
“Loss” means any liability,
loss, claim, settlement payment, cost and expense, interest, award,
judgment, damages (including punitive damages), diminution in
value, fines, fees and penalties or other charge, other than a
Litigation Expense.
【条款范例】
INDEMNIFICATION
Definitions
(to be included with the other
definitions in the agreement):
“Affilitae” means, with respect
to any person or entity, each stockholder, subsidiary, officer,
director, agent and employee of that person or entity.
“关联方”，就任何个人或组织而言，是指该个人或组织的每一股东，子公司，高级员工，董事，代理及雇员。
“Claim” has the meaning
assigned in Section X.09(a).
“索赔”一词具有第X.09(a) 项中所赋予的意义。
“Indemnifiable Losses” means
the aggregate of Losses and Litigation Expenses.
“应赔偿损失”是指累计损失及诉讼费用。
“Indemnitee” means any person
who makes a claim for indemnification under this Article, and each
Affiliate of the Indemnitee.
“受偿方”是指向“赔偿方”提出本条项下赔偿的任何人及其“关联方”。
“Indemnitor” means any person
against whom an Indemnitee makes a claim for indemnification under
this Article.
“赔偿方”是指“受偿方”对之提出本条项下赔偿的任何人。
“Litigation Expense” means any
court filing fee, court cost, arbitration fee or cost, witness fee,
and each other fee and cost of investigating and defending or
asserting a claim for indemnification under this Article,
including, without limitation, in each case, attorneys’ fees, other
professionals’ fees, and disbursements.
“诉讼费”是指任何立案费、庭审成本、仲裁费或仲裁成本、证人费以及为调查、抗辩或提出本条项下的某项赔偿请求而支出的每一其他费用和成本，包括但不限于为每一案件支出的律师费，聘请其他专业人士的费用和支出。
“Loss” means any liability,
loss, claim, settlement payment, cost and expense, interest, award,
judgment, damages (including punitive damages), diminution in
value, fines, fees and penalties or other charge, other than a
Litigation Expense.
“Third Party Claim” has the
meaning assigned in Section X.10(a).
Section X.01.
Indeminification of Buyer. Subject to the limitations set forth in Section X.03
[Survival of Representations and Warranties], Section X.05
[Basket], Section X.06 [Limitation of Indemnity Obligation], and
Section X.07[Taxes], Seller and ParentCo. shall indemnify Buyer
against all Indemnifiable Losses arising out of or relating to any
one more of the following:
X．01 买方享有的赔偿。在不违反第X.03款【声明与保证的继续效力】，第X.05款【赔偿义务限制】，及第X.07【效力】之规定的前提下，“卖方”及其“母公司
