TMcJD : Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.
TMcJD : I don't think you quoted everything because you reference a sentence concerning "consent" but there is no such sentence.
Customer: This is the paragraph that I have the questions on:
Customer: Supplier’s Indemnity. Supplier, for itself, its successors and assigns shall, other than if any or all of the losses, costs, damages, claims, liabilities, fines, penalties, and expenses (including, without limitation, attorneys’ and other professional fees and expenses, and court costs), incurred in connection with the investigation, defense, and settlement of any claim asserted against any or all of the Indemnified Parties, to the extent they are caused by the negligence or willful misconduct of one or more of the Indemnified Parties; indemnify, defend, and hold harmless Purchaser, its parent, subsidiaries and affiliates, and each of their respective agents, officers, employees, successors, assigns, and indemnitees (the “Indemnified Parties”), from and against any and all losses, costs, damages, claims, liabilities, fines, penalties, and expenses (including, without limitation, attorneys’ and other professional fees and expenses, and court costs, incurred in connection with the investigation, defense, and settlement of any claim asserted against any Indemnified Party or the enforcement of Supplier’s obligations under this Article VIII) (collectively, “Losses”), which any of the Indemnified Parties may suffer or incur, in whole or in part, arising out of or in any way related to the Work performed or to be performed, the presence of Supplier and/or its subcontractors at Purchaser’s Site, and/or the actions or omissions of Supplier and/or its subcontractors, including, without limitation, Losses relating to: (1) actual or alleged bodily or mental injury to or death of any person, including, without limitation, any person employed by Purchaser, by Supplier, or its subcontractors; (2) damage to or loss of use of property of Purchaser, Supplier, and/or its subcontractors; (3) any breach of or inaccuracy in the covenants, representations, and warranties made by Supplier under the Agreement; and/or (4) any violation by Supplier or any subcontractor of any ordinance, regulation, rule, or law of the United States or any political subdivision or duly constituted public authority; subject, however, to the limitations provided in Article VIII(B) (for Work performed in Pennsylvania), or Article VIII(C) (for Work performed in states other than Pennsylvania). Purchaser shall with consent from the Supplier (which shall not be unreasonably withheld), be entitled to control the defense of any action indemnified hereunder, with legal counsel of its own choosing.
Customer: My understanding is in short that the Supplier has to indemnify except where "to the extent they are caused by the negligence or willful misconduct of one or more of the Indemnified Parties". What protection does the "to the extent" really provide?
Customer: Additionally the last sentence requires "consent" before the Purchaser can control the defense...what type of limitation does the Supplier have on the "Consent"..?
TMcJD : Yes, your interpretation is correct. The supplier is required to indemnify the purchase for any liability incurred that results from the supply/purchase transaction except for liabilities arising from the negligence or willful misconduct of the purchaser. That provides quite bit of protection really. Negligence is any breach of duty that the purchaser owes. If the purchaser's driver's, shipper's, employees etc. cause some third party damage and get sued, that means that the supplier is not required to imdemnify. That will be most cases. The only thing that even comes to mind that might go back to the supplier is a products liability matter.
TMcJD : Please let me know if I can provide clarification or additional information. Thanks.
Customer: Thanks, XXXXX XXXXX more concerned on the literal definition of "extent" as a way to dilute the Purchasers responsibility.
Customer: Additionally the last sentence could allow the Purchaser to "run wild" with defense and I'm trying to see if this can be controlled with the interpretation of "consent".
TMcJD : That "consent" provision just means that the supplier must first consent before the purchaser can actually control the defense of any claim for which supplier may have liability under the indemnification provisions. That's not something to worry about really.
TMcJD : If you need additional help, just let me know.
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